The United States is currently engaged in sustained military operations against Iran. American aircraft and naval forces have conducted strikes on Iranian targets, casualties have already occurred, and the prospect of a broader regional war grows more plausible by the day.

There is only one small complication.

Congress has never authorized this war.

The Constitution—that document James Iredell deftly referred to as “a great power of attorney”—has something to say about that.

On February 28th, 2026, the United States (together with Israel) initiated a direct large‑scale military operation against Iran after tensions in the region had been escalating since late February. Administration officials justified the attacks as necessary to deter Iran’s nuclear ambitions, protect U.S. forces and allies, and counter what they described as an imminent threat posed by Iranian capabilities (Associated Press, 2026). The administration did not request a declaration of war, nor did it seek a new authorization for the use of military force from Congress.

In other words, the United States initiated hostilities against another sovereign nation under the authority of the executive branch alone. All under the entirely rational justification of self-defense from an imminent threat, because it maybe might be possible that at some very scary but undefined date, and for some very scary but undefined reason, Iran just maybe might decide they found themselves in a position to successfully launch an offensive attack against a country on the other side of the world, with the world’s largest military force.

Never mind that, with our current annual military expenditure of $968.38 billion, we outspend the total military funding of the next 10 biggest militaries in the world… combined. Including China, Russia, Germany, India, Saudi Arabia, the United Kingdom, Ukraine, France, Japan & South Korea (Stockholm International Peace Research Institute, 2025).

Never mind that Iran’s annual military expenditures currently place it 37th among all nations, with a startlingly offensive and menacing military budget of $6.65 billion (Stockholm International Peace Research Institute, 2025).

Never mind the fact that the Iranian Navy, which would be the essential branch of their military to launch an offensive military attack against the United States, could successfully be defeated by one man with a $100 gift card to Dick’s Sporting Goods.

If a country whose annual military expenditures amount to .068% of the United States’ annual military expenditures does not pose a clear, immediate, and overwhelming threat to U.S. national security, I don’t know what does.

Sure, by definition, there is no way to justify Iran as a “threat” when parsing out the meaning of the term according to any dictionary definition, such as the American Heritage Dictionary definition of “threat” as:

Threat (thrĕt)

n.

1. An expression of an intention to inflict pain, harm, or punishment.
2. An indication of impending danger or harm

Nor could it be justified using “threat” as a legal term of art, relying on some kind of definition by way of a statutory hook. Such as the War Powers Resolution, which provides the narrow lawful limits under which a President, acting as Commander-in-Chief, may deploy armed forces:

Presidential executive power as Commander-in-Chief: Purpose & Policy

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
~50 U.S. Code § 1541(c)

Or the International Emergency Economic Powers Act, which the Trump administration has invoked in numerous other situations, using the term “threat” to national security as an all-purpose executive cudgel.

Unusual and extraordinary threat

The authorities granted to the President by section 203 [50 U.S. Code § 1702] may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this title [50 U.S. Code §§ 1701 et seq.] and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat. ...
~50 U.S. Code § 1701(b)

In spite of the lack of any logical justification, it’s obvious that the truth is, the truth doesn’t matter anymore.

The truth is a stop sign in a parking lot when nobody’s watching. That’s the truth.

So the narrative that the Trump administration is selling, and a large body of Americans are buying, is that Iran clearly posed an imminent and existential threat to the United States. The Trump Administration had no choice but to defensively defend our nation with a military strike against a nation that never declared war against us, did not attack us, did not attempt to attack us, and did not even make a credible threat to attack us.

This prompted a brief but constitutionally significant attempt by Congress to reassert its authority. Senator Tim Kaine introduced a war powers resolution that would have required congressional authorization for continued military operations against Iran. The measure relied on the War Powers Resolution of 1973, which allows Congress to compel the withdrawal of U.S. forces engaged in hostilities without legislative approval.

The Senate rejected the resolution by a 47–53 vote, effectively allowing the conflict to proceed without congressional authorization (Reuters, 2026). The arguments offered during the debate were an impressive exercise in political elasticity. Several senators insisted that restraining the president during an ongoing conflict would weaken national security. At the same time, some argued that the United States was not technically “at war” with Iran. A few even suggested that America had effectively been at war with Iran for decades.

This produces a tidy syllogism of modern war powers theory: we are not at war with Iran, except that we may have always been at war with Iran, and therefore Congress should not interfere with the current non-war war with Iran.

Today, my hope is that we can, as Justice Neil Gorsuch once succinctly put it:

“Maybe… just for a second talk about the arcane matter of the Constitution.” (Gorsuch, October 3, 2017)

The founders would likely have recognized the Senate’s rhetorical maneuver instantly. They designed the Constitution precisely to prevent it.

The constitutional architecture governing war powers is not subtle. Article I, § 8, provides that Congress has the power to declare war, while Article II, § 2, names the president as commander in chief of the armed forces.

The division was deliberate. Congress decides whether the nation enters war; the president directs the war once it begins. From an originalist and textualist perspective, this arrangement is among the clearest structural allocations of power in the Constitution.

The framers spent considerable time debating exactly this issue at the Constitutional Convention in 1787. The Committee of Detail initially proposed language granting Congress the power to “make war.” James Madison and Elbridge Gerry successfully moved to change the phrase to “declare war,” not to empower the executive but to preserve the president’s ability to repel sudden attacks while leaving the authority to initiate war with Congress (Madison, June 28, 1787; Gerry, June 28, 1787).

Madison’s reasoning was explicit: executives are naturally inclined toward war, and the Constitution should not entrust them with unilateral authority to begin it. As he later explained during the famous Helvidius–Pacificus debates of 1793,

“The executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.” (Madison, October 30, 1793)

Roger Sherman of Connecticut favored “make” over “declare,” as the “latter narrow[ed] the power too much.” He thought the Executive should “be able to repel and not to commence war (Sherman, June 28, 1787).” Gerry responded that he “never expected to hear in a republic a motion to empower the Executive alone to declare war (Gerry, June 28, 1787).” George Mason of Virginia “preferred ‘declare’ to ‘make’” as a means to “clog, rather than facilitate war.” (Mason, August 17, 1787).

Madison’s and Gerry’s motion passed by a vote of 7 to 2 with one state absent.

Because of this structural risk, the Constitution vested the war-declaring authority “fully and exclusively in the legislature” (Madison, October 30, 1793).

The ratification debates confirm the same understanding. At the Pennsylvania ratifying convention, James Wilson emphasized that the Constitution prevented the executive from dragging the nation into war because the power to declare war rested in the legislature. The American president, unlike the British monarch, could not independently initiate armed conflict (Wilson, November 28, 1787).

Alexander Hamilton reinforced this distinction in Federalist No. 69. Responding to critics who feared the creation of an American monarchy, Hamilton assured readers that the president’s authority would be “much inferior” to that of the British king. The king could declare war and raise armies; the American president could not. Those powers belonged to Congress (Hamilton, March 14, 1788).

Early constitutional commentators echoed the same understanding. St. George Tucker argued that transferring the war power from the executive to the legislature represented one of the Constitution’s most important protections against tyranny (Tucker, 1803). William Rawle similarly observed that vesting the war power in Congress ensured that the decision to enter war would be made collectively by the representatives of the people rather than by a single executive (Rawle, 1825).

Historical practice supports this interpretation. Congress formally declared war in 1812, 1846, 1898, 1917, and 1941. Even conflicts lacking formal declarations—such as the Quasi-War with France—were authorized through statutes enacted by Congress. The early republic generally followed the constitutional framework envisioned by the framers: the legislature authorized war, and the executive carried it out.

The founders’ design was both textual and structural. War was the most consequential decision a republic could make. It involved enormous expenditures of public resources, the potential loss of thousands of lives, and the risk of concentrating political power. For that reason, the Constitution required collective deliberation before the nation could enter war.

Madison summarized the principle succinctly when he wrote that the power to declare war is “one of the most important of all legislative powers.” (Madison, June 20, 1788)

Against this historical and constitutional backdrop, the current conflict with Iran raises a straightforward question. The United States is conducting sustained military operations against another sovereign nation. Congress has not declared war. Congress has not enacted an authorization for the use of force directed at Iran. Congress briefly considered asserting its authority through a war powers resolution, but ultimately declined to do so.

From a strict originalist or textualist perspective, that sequence of events leads to an uncomfortable but fairly obvious conclusion: the war lacks constitutional authorization.

This conclusion does not require a judgment about the wisdom of the conflict. Iran may indeed pose serious threats. Military action might ultimately prove strategically justified. Those are policy questions. The Constitution addresses a different issue: who decides whether the United States goes to war.

The founders answered that question clearly. Congress decides.

When presidents initiate wars without congressional authorization—and when Congress declines to reclaim its authority—the constitutional structure begins to erode. The founders understood that war has a peculiar tendency to centralize power. It elevates the executive, marginalizes the legislature, and grants extraordinary authority to a single individual.

That is precisely why the Constitution makes entering war deliberately difficult.

The United States now faces a choice that the founders anticipated more than two centuries ago. A republic can insist that war be authorized by the representatives of the people, or it can gradually allow executive power to absorb that authority.

James Madison understood the stakes well enough to state them plainly:

“No nation could preserve its freedom in the midst of continual warfare; it is war which enlarges the powers of the executive beyond the proper limits of the Constitution.”

~James Madison, Letter to Edmund Pendleton, February 18, 1795

The current conflict with Iran, therefore, presents more than a geopolitical dilemma. It presents a constitutional one.

The founders left us a fairly clear instruction manual. The political branches must decide whether they intend to follow it. If they refuse to follow it, it is incumbent on us, the peoples of the Several States, to demand constitutional accountability.

References

1. 50 U.S. Code § 1541 - Purpose and policy. (2021). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/50/1541.

2. 50 U.S. Code § 1701 - Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities. (2001). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/50/1701.

3. 50 U.S. Code § 1702 - Presidential authorities. (2001). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/50/1702.

4. Associated Press. (2026, March 4). House will vote on Iran war powers resolution in test of Trump’s strategy. https://apnews.com/article/5d7d93c7793802881d9cde042220d7bc.

5. Associated Press. (2026, March 4). Senate rejects Iran war powers resolution. https://apnews.com/article/iran-war-senate-vote-war-powers-06f9465c16218f90192f7502baa736eb.

6. Gerry, E. (1787, June 28). Speech at the Constitutional Convention, Philadelphia, PA. https://avalon.law.yale.edu/18th_century/debates_628.asp.

7. Hamilton, A. (1788, March 14). Federalist No. 69. https://avalon.law.yale.edu/18th_century/fed69.asp.

8. Iredell, J. (1788, July 28). North Carolina Convention. https://press-pubs.uchicago.edu/founders/documents/v1ch14s45.html.

9. Madison, J. (1787, June 28). Speech at the Constitutional Convention, Philadelphia, PA. https://avalon.law.yale.edu/18th_century/debates_628.asp.

10. Madison, J. (1788, June 20). Speech at the Virginia Ratifying Convention, Richmond, VA. https://constitution.org/1-Constitution/rc/rat_va_17.htm.

11. Madison, J. (1793, October 30). Helvidius No. 4. https://founders.archives.gov/documents/Madison/01-15-02-0070.

12. Madison, J. (1795, February 18). Letter to Edmund Pendleton. https://oll.libertyfund.org/titles/madison-the-writings-vol-6-1790-1802.

13. St. George Tucker. (1803). Blackstone’s Commentaries with notes of reference to the Constitution. Birch & Small. https://constitution.org/1-Constitution/tb/tb-0000.htm.

14. Rawle, W. (1825). A view of the Constitution of the United States. H.C. Carey & I. Lea. https://archive.org/details/viewofconstituti00rawl.

15. Stockholm International Peace Research Institute. (2025). Military spending. Our World in Data. https://ourworldindata.org/grapher/military-spending-sipri.

16. The American Heritage Dictionary (Ed.). (2022). Definition Of Threat. Ahdictionary.com. https://ahdictionary.com/word/search.html?q=threat.

17. U.S. Constitution. (1787). Article I, Section 8; Article II, Section 2.

18. Wilson, J. (1787, November 28). Speech at the Pennsylvania Ratifying Convention, Philadelphia, PA. https://csac.history.wisc.edu/wp-content/uploads/sites/281/2024/04/DC3-06-09-01_Wilson-Speech-in-Convention_28Nov87.pdf.

19. Reuters. (2026, March 4). Majority of U.S. Senate blocks measure to rein in Trump Iran war powers. https://www.reuters.com/world/us/majority-us-senate-votes-block-bid-rein-trump-iran-war-powers-voting-continues-2026-03-04

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In his recent Truth Social post, Trump thundered that:

“The Leftwing nut jobs at Anthropic have made a DISASTROUS MISTAKE trying to STRONG-ARM the Department of War, and force them to obey their Terms of Service instead of our Constitution.”

The rhetorical move is impressive. It manages, in a single sentence, to invert the entire architecture of American constitutionalism.

Let’s slow down and read that claim with the kind of care we usually reserve for radioactive material.

The premise appears to be this: a private company—Anthropic—is violating the Constitution by refusing to let the federal government alter a contract in ways the company does not wish to allow. That is not just wrong. It is wrong in a way that would have startled James Madison into dropping his quill.

Start with first principles. The Constitution is a charter of limited powers. It enumerates and constrains the authority of the federal government. It does not conscript private actors into service whenever a cabinet secretary feels inconvenienced. As Randy Barnett has put it with characteristic clarity, the Constitution “is not the law that governs us; it is the law that governs those who govern us” (Barnett, 2014).

That sentence is doing heavy conceptual lifting. What Barnett means is that the Constitution primarily imposes structural and procedural constraints on public officials. It allocates, separates, checks, and limits powers. It is not a general code of conduct imposed on private citizens and corporations. To say otherwise is to reverse the direction of constitutional authority.

At the Founding, the Constitution was understood as a framework that empowered Congress to legislate in enumerated domains, allowed the President to execute those laws made in pursuance of the Constitution’s enumerated powers, and restrained federal overreach. As the Supreme Court later put it in Barron v. Baltimore (1833), the Constitution’s restrictions originally applied only to the federal government, not to private actors or even the states.

There is simply no clause—none—that can plausibly be read to require a private firm to modify its contractual terms to facilitate federal surveillance or autonomous weapons development. Article I, Section 8 lists Congress’s powers. “To regulate Commerce.” “To declare War.” “To coin Money.” It does not include “To compel software companies to rewrite their Terms of Service because the Secretary is annoyed.”

Our founders and ratifiers universally emphasized the importance of enumerated powers. While Barnett’s “presumption of liberty” framework underscores that when power is not granted, it is withheld (Barnett, 2014), this is only an echo of the sentiment expressed by Founding Fathers such as James Wilson, in his famous State House Speech, “[E]very thing which is not given, is reserved” (1787). If the federal government lacks enumerated authority to commandeer private firms in this manner, then the absence is not a drafting oversight. It is the point.

Barnett’s scholarship has repeatedly emphasized that constitutional limits are meaningful only if courts and citizens are willing to enforce them as limits. In “The Original Meaning of the Commerce Clause,” he carefully reconstructs the public meaning of “commerce” as trade and exchange, not as a roving license for federal micromanagement (Barnett, 2001). Even under the broadest modern interpretations of federal power, nothing in that analysis suggests a duty on private parties to assist the government in circumventing contractual boundaries.

The idea that Anthropic’s refusal to bend its own contract is somehow a constitutional violation collapses the distinction between public power and private autonomy. It treats the Constitution as a tool the government may wield against unwilling counterparties, rather than as a shield against governmental excess.

There is also a certain irony in invoking the Constitution to demand that a private company disregard its own contractual terms. The Constitution does, in fact, contain a Contracts Clause—Article I, Section 10—but that provision restricts states from impairing the obligation of contracts. It does not empower the federal government to impair them, much less obligate private parties to waive them.

This rhetorical habit of labeling every favored policy “constitutional” and every disliked policy “unconstitutional” is not just sloppy. It is corrosive. Constitutional meaning is not a mood ring. It does not change color based on partisan preference. Though these have sadly become modern American society’s default definitions of these terms, there is still something incredibly galling about just how brazen Trump’s adoption of them has become.

Scholars across interpretive camps have warned against this flattening of constitutional discourse. Keith Whittington, for example, has distinguished between constitutional interpretation (recovering meaning) and constitutional construction (building out doctrine where meaning underdetermines outcomes) (Whittington, 1999). When public officials skip both steps and simply declare “unconstitutional!” as a synonym for “I disapprove,” they are not engaging in interpretation or construction. They are engaging in branding.

Originalism, whatever its critics say, at least insists on a disciplined inquiry into text, history, and structure. It asks what the words meant to the ratifying public. It does not ask whether the policy at issue advances a preferred geopolitical objective or embarrasses a cabinet official. To accuse a private firm of violating the Constitution by adhering to its own Terms of Service is to convert a charter of limited government into a general-purpose cudgel.

Even if you are part of the MAGA movement, you should find this troubling. Donald Trump ran his 2016 campaign on the promise that he was fundamentally a constitutional originalist. Now, even among politicians, Donald Trump is a consummate liar. But he began his tenure by showing real promise with his nomination of Neil Gorsuch to the Supreme Court. One of the three truly principled Originalists on the court (and my second favorite Supreme Court Justice).

But while I think everyone knew Trump wasn’t committed to those principles, the degree to which he has been making himself an outright enemy to the Constitution this term is still rather shocking. This problem has grown exponentially compared to his first term, in which his attitude could really have been more defined as a disinterest in following the Constitution—the new path he is on is one of active hostility towards it, and I would truly like to believe the MAGA movement has not entirely run out of fucks to give when it comes to the notion of constitutional government.

This inversion is not helped in the context I described in my prior analysis of Pete Hegseth’s efforts to pressure AI firms into altering their algorithms for mass surveillance and autonomous weapons capabilities.

The contract negotiated with the federal government is pretty cut and dry on this matter:

As part of the contract, the Pentagon agreed to abide by Anthropic’s acceptable use policy (AUP). That AUP, among other things, prohibited use of Claude: (i) for mass domestic surveillance of Americans; and (ii) in fully autonomous weapons systems capable of selecting and engaging targets without human intervention (Frazee et al., 2026).

And statements by Anthropic AI CEO Dario Amodei reflect this commitment:

[I]n a narrow set of cases, we believe AI can undermine, rather than defend, democratic values. Some uses are also simply outside the bounds of what today’s technology can safely and reliably do. Two such use cases have never been included in our contracts with the Department of War, and we believe they should not be included now:

Mass domestic surveillance. We support the use of AI for lawful foreign intelligence and counterintelligence missions. But using these systems for mass domestic surveillance is incompatible with democratic values. AI-driven mass surveillance presents serious, novel risks to our fundamental liberties. To the extent that such surveillance is currently legal, this is only because the law has not yet caught up with the rapidly growing capabilities of AI… Powerful AI makes it possible to assemble this scattered, individually innocuous data into a comprehensive picture of any person’s life—automatically and at massive scale.

Fully autonomous weapons. …[T]oday, frontier AI systems are simply not reliable enough to power fully autonomous weapons. We will not knowingly provide a product that puts America’s warfighters and civilians at risk. We have offered to work directly with the Department of War on R&D to improve the reliability of these systems, but they have not accepted this offer. In addition, without proper oversight, fully autonomous weapons cannot be relied upon to exercise the critical judgment that our highly trained, professional troops exhibit every day. They need to be deployed with proper guardrails, which don’t exist today.

The Department of War has stated they will only contract with AI companies who accede to “any lawful use” and remove safeguards in the cases mentioned above. They have threatened to remove us from their systems if we maintain these safeguards; they have also threatened to designate us a “supply chain risk”—a label reserved for US adversaries, never before applied to an American company—and to invoke the Defense Production Act to force the safeguards’ removal. These latter two threats are inherently contradictory: one labels us a security risk; the other labels Claude as essential to national security.

Regardless, these threats do not change our position: we cannot in good conscience accede to their request.

~Dario Amodei, 2026

If the federal government wishes to expand its authority into those domains, the constitutional path is clear and arduous: seek legislation within enumerated powers, respect due process, and remain subject to judicial review. The path is not to declare that any private resistance is itself unconstitutional.

Barnett’s formulation bears repeating because it is the conceptual anchor here: the Constitution governs those who govern us (Barnett, 2014). It tells officeholders what they may and may not do. It does not deputize them to override private agreements whenever they invoke the word “War” with sufficient capitalization.

The real danger in Trump’s post is not the bombast. American politics has survived bombast before. The danger is the normalization of a rhetorical move that treats constitutional language as a partisan incantation rather than a legal discipline. When “constitutional” becomes shorthand for “aligned with my agenda,” and “unconstitutional” for “aligned with yours,” the document ceases to function as law and begins to function as a slogan.

Originalism, at its best, is an antidote to that drift. It demands that we ask what the text authorizes and what it forbids, not what we wish it said. Under any plausible original understanding, there is no duty imposed on a private AI company to rewrite its contracts at the behest of federal officials. To claim otherwise is not a bold new constitutional theory. It is a category error wrapped in all caps.

References

1. Amodei, D. (2026, February 26). Statement from Dario Amodei on our discussions with the Department of War. Anthropic.com. https://www.anthropic.com/news/statement-department-of-war.

2. Barnett, R. E. (2001). The Original Meaning of the Commerce Clause. The University of Chicago Law Review, 68(1), 101. https://doi.org/10.2307/1600443.

3. Barnett, R. E. (2014). Restoring the lost constitution : the presumption of liberty. Princeton University Press.

4. Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833). (1833, February 16). Justia Law. https://supreme.justia.com/cases/federal/us/32/243.

5. Frazee, J. R., Prairie, J., & Hickey, A. (2026, March 2). Pentagon Designates Anthropic a Supply Chain Risk — What Government Contractors Need to Know. Mayerbrown.com.

6. Trump, D. (2026). Truth Details. Truthsocial.com. https://truthsocial.com/@realDonaldTrump/posts/116144552969293195.

7. Whittington, K. E. (1999). Constitutional Interpretation. University Press of Kansas.

8. Wilson, J. (1787, October 6). James Wilson’s State House Speech - The American Founding. The American Founding. https://americanfounding.org/entries/state-house-speech/.

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For context, this is the same company that has drawn a moral line in the sand: no autonomous weapons, no mass surveillance. And apparently, the Department of Defense is now very invested in testing how pliable those lines are. This is the exact demand Defense Production Pete is making.

The DPA’s Text: Not Quite Designed for Ethics in Neural Networks

Before climbing the interpretive ladder to the ethical high ground, we must get our boots on the statutory ground. The DPA consists of several Titles, each of which authorizes different functions. Title I allows the president to require businesses to accept and prioritize contracts for “materials and services necessary for national defense” (Defense Production Act of 1950, 50 U.S.C. § 4511). In 1950, that textual ambit was clearly intended for physical goods—steel, guns, tanks (Baker, 2021). A textualist approach emphasizes the ordinary meaning of those words at enactment. In other words, “production” meant something you could drop on your foot.

Title VII, by contrast, enables information gathering—asking companies to report on their activities. President Biden previously invoked this information-gathering power to require AI firms to disclose training activities and model details (Mehra, 2024). That was effectively a polite request for documents; Title I is the government’s MiG-15 of compulsion.

The question—almost Victorian in its elegance—is: does “materials and services” include retraining an AI model to strip away ethical guardrails? Textualists would remind us that the plain text must apply across contexts, not just when a government official wants it to. Strip too much, and you’re no longer interpreting the statute—you’re performing judicial origami.

Textualism’s Discomfort With AI Moral Engineering

Let’s tick through Title I with the precision of someone forced to read statutes for fun:

1. “Materials”—As traditionally understood, this implies tangible goods. Machines? Sure. Algorithms? Possibly if you squint. But ethical constraints baked into training data? That’s not a “material”; that’s an intention encoded in software.

2. “Services”—Arguably broader, but still traditionally linked to human labor or explicit contractual obligations, not transforming AI from ethical to amoral at the government’s whim.

Thus, textualism casts a wary eye at the notion that retraining AI—in essence rewriting its ethical DNA—is within the core meaning of “materials or services necessary for national defense.” It’s one thing to prioritize deliveries of tanks; quite another to compel a private entity to redesign a moral compass built into software (Hamad, 2026).

Originalism, with its focus on historical public meaning, would similarly balk: the concept of altering neural-network ethics would have puzzled the average legislator in 1950. This isn’t law expansion; this is law inflation.

Scholarly Voices on Military AI and Governance

The legal academy hasn’t been idle while this storm brewed. Articles on autonomous weapons and AI governance provide critical context here.

First, scholars studying autonomous weapons systems (LAWS) show that legal and ethical frameworks struggle to adapt to AI that can act without human input. Research notes that distinction, proportionality, and human judgment, foundational to international humanitarian law, are hard to reconcile with autonomous systems that make life-and-death decisions without direct oversight (Hamad, 2026). Another article argues that while existing laws still apply, accountability and meaningful human control remain significant gaps when AI systems make battlefield determinations, underscoring the importance of embedding legal and ethical oversight into AI design and governance (Public perceptions of autonomous lethal weapons systems, 2024).

From a policy and regulatory perspective, commentators emphasize that AI’s dual-use nature—meaning technologies developed for civilian ends that have military application—poses unique ethical and legal challenges (Baker, 2021). Treating algorithms merely as weapons subjects them to existing laws on weapons systems, but the process of embedding ethical constraints should not be thrown out because the Pentagon wants more flexibility.

In a symposium on responsible AI and weapons review, military legal scholars cautioned that relying on traditional weapons review processes alone is insufficient to ensure compliance with ethical principles, given that many AI systems integrated into military workflows might not even trigger such reviews under existing frameworks (Hamad, 2026).

These voices collectively suggest that the legal system—and Congress—needs to catch up to the technological realities, not that we should dust off a Cold War statute and hope it fits.

Where the DPA Frays Under AI Demands (And Why Textualism Tugs at Its Seams)

Applying the DPA to AI isn’t just a square-peg–round-hole problem—it’s a PhD dissertation masquerading as statutory interpretation. Here’s where the legal fabric starts to unravel:

• Definition of “Production”: The statute never anticipated digital “production,” especially not the kind that involves ethics enforcement or removal. AI models aren’t physical goods you can ship; they’re trained systems whose behavior is shaped by data and architecture (Mehra, 2024).

• Scope of “National Defense”: While national defense is understandably broad, the DPA was focused on physical preparedness. Stretching it to cover moral parameters of software risks collapsing the statute’s boundaries (Baker, 2021).

• Limits on Compulsion: Even if the statute authorizes compelling production or services, it does not specify that the executive can override contractual terms that embed ethical frameworks. A textualist would note that existing contracts are part of the legal landscape, the statute must be read alongside, not erased by textual fiat (Defense Production Act of 1950, 50 U.S.C. § 4501 et seq.).

• Contractual and Ethical Guardrails: The Pentagon originally agreed to Anthropic’s restrictions—meaning there was sensible alignment. The sudden insistence on “any lawful use” contradicts prior contractual terms and suggests a statutory reading that swallows contractual autonomy whole.

From an originalist angle, this is deeply unpersuasive. Congress never intended the DPA to be a tool for overriding moral commitments embedded in private contracts; it intended urgent prioritization of physical materials and services in defense emergencies. Many textualists would call this a manufactured emergency, which raises broader constitutional separation-of-powers concerns.

The Constitutional Background: Why Congress Should Act

All of this statutory wrestling would be less dramatic if Congress had actually legislated on AI and military use. Originalism treats the legislature as the primary author of substantive policy; it doesn’t outsource moral and ethical judgments to executive interpretation of ambiguous text.

Instead, we’re left with a Cold War statute doing existential yoga, executives asserting broad powers, and private companies trying to preserve conscience alongside contracts.

Conclusion

To summarize with dry clarity: invoking the Defense Production Act to compel ethical restructuring of AI is like using a typewriter to write software code. You can try, but the tool isn’t fit for the task. Textualists and originalists both find reasons, grounded in statute and constitutional design, to resist such expansive application. Scholarly voices in law and policy underscore regulatory gaps when AI enters military domains, including accountability and compliance with humanitarian law (Arai & Matsumoto, 2023; Hamad, 2026).

Until Congress updates the legal framework to address AI’s unique characteristics, we’ll be stuck with legal interpretations that make constitutional scholars shudder. But at least it’s entertaining.

References

1. Arai, K., & Matsumoto, M. (2023). Public perceptions of autonomous lethal weapons systems. AI and Ethics, 4(2). https://doi.org/10.1007/s43681-023-00282-9

2. Baker, J. (2021, April). A DPA for the 21st Century | Center for Security and Emerging Technology. Georgetown Center for Security and Emerging Technology. https://cset.georgetown.edu/publication/a-dpa-for-the-21st-century/

3. Biden, J. (2023). Executive Order 14110-Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. https://www.govinfo.gov/content/pkg/DCPD-202300949/pdf/DCPD-202300949.pdf.

4. Defense Production Act of 1950, 50 U.S.C. § 4501. (1950). Uscode.house.gov. https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter55&edition=prelim

5. Hamad, B. (2026). The Impact of Digital Technology on International Humanitarian Law: Ethical and Legal Implications of Autonomous Weapons Systems. European Journal of Law and Political Science, 4(4), 1–14. https://doi.org/10.24018/ejpolitics.2025.4.4.182

6. Mehra, A. (2025, January 21). Executive Orders on AI: How to (Lawfully) Apply the Defense Production Act. Mercatus Center. https://www.mercatus.org/research/policy-briefs/executive-orders-ai-how-lawfully-apply-defense-production-act

7. Miller, S. (2025). Lethal autonomous weapon systems (LAWS): meaningful human Control, collective moral responsibility and institutional design. Ethics and Information Technology, 27(4). https://doi.org/10.1007/s10676-025-09874-x

This is the second in a series of articles I am publishing that examine Niccolò Machiavelli’s political philosophy. If you have not done so, I would encourage you to start by reading the first article in this series, “Rehabilitating Machiavelli.”

Machiavelli in the American Founding: Conflict, Corruption, and the Architecture of Distrust

Niccolò Machiavelli never set foot in Philadelphia. He did not perspire in Independence Hall, nor did he debate representation ratios with Gouverneur Morris. Yet his political anthropology—his insistence that power expands, that social conflict is ineradicable, and that liberty survives only through institutional design—hovered over the American founding like a stern Florentine observer who had seen republics rise, decay, and collapse before breakfast.

The debate between Federalists and Anti-Federalists was not a struggle between republicanism and its enemies. It was a family quarrel within the classical republican tradition. As J. G. A. Pocock (1975) argued, that tradition passed decisively through Machiavelli before crossing the Atlantic. Americans inherited not merely Roman nostalgia but Machiavelli’s modernized republicanism—his analysis of corruption, civic virtue, institutional tension, and the mixed constitution. They then vigorously disagreed about how to adapt those insights to a sprawling commercial continent.

Machiavelli’s Premise: Assume Ambition, Structure Conflict

In his Discourses on Livy, Machiavelli is explicit: conflict between social orders is not a defect but a structural reality.

“In every republic there are two diverse humors, that of the people and that of the great; and all the laws that are made in favor of liberty arise from their disunion… And those who condemn the tumults between the nobles and the plebs seem to me to be blaming those things that were the first cause of Rome’s retaining her freedom; and that they attend more to the noise and the cries which such tumults occasioned than to the good effects which they produced.”
~Niccolò Machiavelli, Discourses on Livy, Book I, Chapter 4 (1531).

Machiavelli saw conflict as the midwife to liberty, not its assassin—and Rome endured not because it eliminated antagonism but because it institutionalized it.

He is equally blunt about human nature. Political design must assume opportunism. It is necessary, he argues, to proceed as if individuals will pursue advantage when circumstances permit (Machiavelli, 1531, I.3).

“The people desire neither to be commanded nor oppressed by the great, and the great desire to command and oppress the people.”
~Niccolò Machiavelli, Discourses on Livy, Book I, Chapter 5 (1531).

The problem of liberty, therefore, is architectural: how to prevent either impulse from consolidating into domination.

Quentin Skinner (1978) situates Machiavelli within a republican conception of liberty as freedom from domination, secured not by moral virtue alone but by institutional counterweights. Maurizio Viroli (1998) underscores Machiavelli’s warning that republics must periodically renew themselves or decay. Corruption, in this vocabulary, is not petty bribery; it is civic erosion and structural drift.

By the eighteenth century, as Bernard Bailyn (1967) and Gordon Wood (1969) demonstrate, American political discourse was saturated with this language of corruption and decline. Colonists read history as a cautionary tale. Republics died. Luxury softened virtue. Ambition metastasized. They were, in effect, conversing in a Machiavellian dialect—even when they cited Montesquieu.

The Anti-Federalists: Scale as the Enemy of Virtue

The Anti-Federalists absorbed Machiavelli’s diagnosis of corruption but doubted whether the proposed Constitution of 1787 offered a cure—or merely a more efficient path to decay.

Brutus framed the question of national scale starkly, arguing that as a republic grows larger, authority consolidates into fewer hands.

“History furnishes no example of a free republic, anything like the extent of the United States.”
~ Brutus, Essay I, New York Journal, October 18, 1787.

Small republics had endured; vast ones had not. The issue was not nostalgia but mechanics.

He elaborated that republican government depends upon civic similarity:

“In a republic, the manners, sentiments, and interests of the people should be similar.”
~Brutus I, 1787

The more extensive the territory, “the more diversified the interests… the more difficult it will be to form a union of sentiments.” Distance would produce remoteness; remoteness would produce insulation.

The fear that an immense republic would elevate elites appears repeatedly. Brutus warned that representation over a vast territory would favor “the better sort, the well-born, etc.” (Brutus I, 1787). Centinel predicted that the proposed system would terminate in “a permanent aristocracy” (Centinel I, 1787). The Machiavellian tension between “the great” and “the people” reappears here in an American idiom.

Centinel articulated this degenerative logic explicitly:

“When the people once resign their power into the hands of their rulers, and cease to be the sovereign, the government is then no longer a free one; an aristocracy, monarchy, or despotism will rise on its ruin.”
~ Centinel I, Independent Gazetteer, October 5, 1787.

This is Machiavelli’s cyclical theory of regimes translated into constitutional anxiety.

Cato extended this warning to the executive:

“The president possessed of the power, given him by this frame of government differs but very immaterially from the establishment of monarchy in Great Britain.”
~ Cato V, New-York Journal, November 22, 1787.

Consolidated executive authority, even under republican forms, risked monarchical effect.

Concerns about concentrated institutional power extended beyond the executive. The Federal Farmer warned that the proposed government blended powers in ways that threatened consolidation (Federal Farmer III, 1787). Luther Martin went further, arguing that the new system was calculated “to abolish and annihilate the State governments” (Martin, 1787).

Judicial power generated some of the sharpest warnings. In Brutus XV, federal judges are described as “independent of the people, of the legislature, and of every power under heaven” (Brutus XV, 1788). Because their constitutional interpretations would be final, “there is no power above them that can correct their errors.” Independence without correction risked oligarchic entrenchment.

Patrick Henry dramatized the executive danger during the Virginia ratifying convention:

“Your President may easily become King… If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute.”
~ Patrick Henry, Speech of June 5, 1788, Virginia Ratifying Convention.

Herbert Storing (1981) persuasively argued that the Anti-Federalists were not enemies of republicanism but its vigilant custodians. They feared that scale would dissolve the intimate civic culture necessary for virtue. Their solution was proximity: keep power visible, local, and constrained.

The Federalists: Expanding the Sphere, Multiplying the Checks

The Federalists accepted the same anthropology but rejected the small-republic remedy. They proposed something audacious: expand the republic and use multiplicity itself as a safeguard.

James Madison begins Federalist No. 10 with an observation that mirrors Machiavelli’s realism:

“The latent causes of faction are thus sown in the nature of man; and we see them every where brought into different degrees of activity, according to the different circumstances of civil society.”
~James Madison, “Federalist No. 10,” The Daily Advertiser (New York), November 22, 1787.

Madison goes on to observe that eliminating faction would require destroying the liberty which is essential to its existence (1787). The task, therefore, was mitigation through structure.

“Liberty is to faction what air is to fire, an aliment without which it instantly expires… The inference to which we are brought is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.”
~James Madison, “Federalist No. 10,” November 22, 1787.

An extended republic, Madison argued, is vital:

“[When you] extend the sphere, you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”
~James Madison, “Federalist No. 10,” November 22, 1787.

Diversity and representation would disperse factional energy.

In Federalist No. 51, Madison translated one of Machiavelli’s central insights into practical institutional design: “Ambition must be made to counteract ambition” (1788). Here, Machiavelli’s realist architecture becomes operationalized. The premise is simple—assume vice, and build a system that turns it into productive friction.

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
~James Madison, “Federalist No. 51,” The Independent Journal (New York), February 6, 1788.

In Federalist No. 9, Hamilton celebrates what he calls the modern “science of politics”—while emphasizing:

“The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behaviour; the representation of the people in the legislature, by deputies of their own election: these are either wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellencies of republican government may be retained and its imperfections lessened or avoided.”
~Alexander Hamilton, “Federalist No. 9,” The Independent Journal (New York), November 21, 1787.

The Constitution’s separation of powers, bicameralism, and federal division of sovereignty reflect the classical mixed constitution tradition filtered through early modern republicanism.

Madison also acknowledged in Federalist No. 48 that:

“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”
~James Madison, “Federalist No. 48,” The Independent Journal (New York), February 1, 1788.

Even the Constitution’s defenders assumed that authority would expand unless checked.

Paul Rahe (1992) traces this classical republican lineage directly into American constitutional design. Pocock (1975) situates the founding within the Atlantic afterlife of civic humanism. Wood (1969) observes that the Constitution represented not a rejection of republicanism but its transformation—an attempt to preserve liberty in a complex commercial society without relying solely on fragile civic virtue.

Renewal and Realism

Machiavelli warned that republics decay unless they are periodically renewed—that from time to time their political orders must be restored to their founding principles, lest corruption take root (Machiavelli, 1531, III.1).

The Constitution can be read as precisely such an act of renewal—a recalibration of republican structure for continental scale.

The Anti-Federalists feared that the machinery would consolidate power beyond recall. The Federalists feared that without such machinery, factional instability would dissolve the union. Both assumed corruption was a constant threat. Both distrusted unchecked authority. Both operated within a Machiavellian framework that treated liberty as precarious rather than natural.

The irony is striking. Machiavelli, caricatured as the theorist of princely ruthlessness, becomes—through the transmission of republican thought—a patron of institutional restraint. His lesson was not that power should be unleashed but that it must be structured.

If there is a single Machiavellian thread binding the American debate, it is this: liberty survives not because rulers are virtuous but because institutions make vice expensive. The Anti-Federalists warned that consolidation would breed aristocracy and monarchy. The Federalists insisted that dispersed ambition within a large republic would prevent either from taking hold.

The Constitution embodies that wager. Human beings are ambitious. Factions are inevitable. Corruption is perennial. Therefore, build a system in which power checks power, scale disperses dominance, and liberty rests not on optimism but on architecture.

It is not sentimental. It is engineered tension. And in politics, tension—carefully calibrated—is often another word for freedom.

--

Cartago Delenda Est

References

1. Bailyn, B. (1967). The ideological origins of the American Revolution. Harvard University Press. https://archive.org/details/dli.bengal.10689.12758.

2. Brutus I. (1981). Essay I (Original work published 1787). In H. J. Storing (Ed.), The complete Anti-Federalist (Vol. 2). University of Chicago Press. https://teachingamericanhistory.org/document/brutus-i/.

3. Brutus XV. (1981). Essay XV (Original work published 1788). In H. J. Storing (Ed.), The complete Anti-Federalist (Vol. 2). University of Chicago Press. https://teachingamericanhistory.org/document/brutus-xv/.

4. Cato V. (1981). Essay V (Original work published 1787). In H. J. Storing (Ed.), The complete Anti-Federalist (Vol. 2). University of Chicago Press. https://teachingamericanhistory.org/document/cato-no-5/.

5. Centinel I. (1981). Essay I (Original work published 1787). In H. J. Storing (Ed.), The complete Anti-Federalist (Vol. 2). University of Chicago Press. https://teachingamericanhistory.org/document/centinel-i/.

6. Federal Farmer III. (1981). Letter III (Original work published 1787). In H. J. Storing (Ed.), The complete Anti-Federalist (Vol. 2). University of Chicago Press. https://teachingamericanhistory.org/document/federal-farmer-iii/.

7. Hamilton, A. (2003). Federalist No. 9 (Original work published 1787). In A. Hamilton, J. Madison, & J. Jay, The Federalist papers. Signet Classics. https://founders.archives.gov/documents/Hamilton/01-04-02-0162.

8. Henry, P. (1986). Speech in the Virginia ratifying convention (June 5, 1788). In J. P. Kaminski & G. S. Saladino (Eds.), The documentary history of the ratification of the Constitution (Vol. 9). State Historical Society of Wisconsin. https://teachingamericanhistory.org/document/remarks-at-virginia-ratifying-convention/.

9. Machiavelli, N. (1996). Discourses on Livy (H. C. Mansfield & N. Tarcov, Trans.). University of Chicago Press. (Original work published 1531). https://constitution.org/2-Authors/mac/disclivy.pdf.

10. Madison, J. (2003). Federalist No. 10 (Original work published 1787). In A. Hamilton, J. Madison, & J. Jay, The Federalist papers. Signet Classics. https://founders.archives.gov/documents/Madison/01-10-02-0178.

11. Madison, J. (2003). Federalist No. 48 (Original work published 1788). In A. Hamilton, J. Madison, & J. Jay, The Federalist papers. Signet Classics. https://founders.archives.gov/documents/Madison/01-10-02-0269.

12. Madison, J. (2003). Federalist No. 51 (Original work published 1788). In A. Hamilton, J. Madison, & J. Jay, The Federalist papers. Signet Classics. https://founders.archives.gov/documents/Hamilton/01-04-02-0199.

13. Martin, L. (1787, December 28). Genuine information. Maryland Gazette. https://www.consource.org/document/luther-martin-genuine-information-1787-12-28/.

14. Pocock, J. G. A. (1975). The Machiavellian moment. Princeton University Press. https://doi.org/10.23943/princeton/9780691172231.001.0001.

15. Rahe, P. A. (1992). Republics ancient and modern. University of North Carolina Press.

16. Skinner, Q. (1978). The foundations of modern political thought (Vol. 1). Cambridge University Press. https://archive.org/details/quentin-skinner-the-foundations-of-modern-political-thought-vol.-1-the-renaissance/Quentin%20Skinner%20-%20The%20Foundations%20of%20Modern%20Political%20Thought%2C%20Vol.%201%20The%20Renaissance/page/n7/mode/2up?ui=embed&wrapper=false.

17. Storing, H. J. (Ed.). (1981). The complete Anti-Federalist. University of Chicago Press. https://oll.libertyfund.org/pages/the-anti-federalists-a-bibliography.

18. Viroli, M. (1998). Machiavelli. Oxford University Press. https://doi.org/10.1093/acprof:oso/9780198780885.001.0001.

19. Wood, G. S. (1969). The creation of the American Republic, 1776–1787. University of North Carolina Press. https://archive.org/details/creationofameric0000wood.

    ---

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“A republic, if she is to maintain her freedom, must often renew herself by recalling to her principles.”

~Niccolò Machiavelli, Discourses on Livy, Book III, Chapter 1 (1531).

You may very well be asking yourself why a legal analyst with a penchant for constitutional law would possibly be devoting an entire article to not only discussing the political philosophy of Niccolò Machiavelli, but outright defending his body of work as being every bit as important to American constitutional law as the works of John Locke or Montesquieu. After all, this is the man who famously said:

“A prince who wishes to maintain his state must learn how not to be good” (Machiavelli, The Prince, 1532, p. 61).

As we’ll see, that quotation aligns far more closely with the views of several of our Republic’s most influential founders than many constitutional scholars would prefer not to acknowledge. Just as importantly, it is unfair to judge The Prince without the careful historical context that modern commentary often ignores. And it is even more unfair to judge Machiavelli himself without grappling with his true masterwork, the Discourses on Livy.

Machiavelli has a reputation for being sinister—scheming, ruthless, almost cartoonishly villainous. The word “Machiavellian” has practically become shorthand for cold-blooded manipulation. But that reputation rests almost entirely on one book, The Prince, and even that book is often read in the most dramatic possible way.

What tends to get overlooked is that Machiavelli wrote another work that is longer, less famous, and far more reflective of his own political commitments: the Discourses on Livy. Unlike The Prince, which focuses on rulers and monarchy, the Discourses is devoted almost entirely to the Roman Republic. So we’re left with an apparent contradiction. In one book, Machiavelli seems to praise princes. In another, he celebrates republics. Which did he actually believe in?

The answer is both—but under different circumstances and for different purposes.

In The Prince, Machiavelli does not shy away from harsh tactics. He openly discusses deception, force, and cruelty when they are politically effective. Yet he makes clear at the end of the book that the ultimate goal is not cruelty for its own sake. The prince’s highest task is to unite Italy and end the constant warfare that had fractured it for generations. The book is less “the ends justify the means” and more “desperate times require extraordinary action.”

The Discourses, by contrast, offers sustained praise of republics. Machiavelli argues that republics are more stable, more just, and better suited to long-term political health. His admiration for the Florentine Republic was profound, but his true political model was ancient Rome. In analyzing Rome’s institutions, he helped lay the groundwork for what later became known as classical republicanism.

Understanding Rome is key to understanding The Prince. The Roman Republic had a mechanism for crisis: during emergencies, it appointed a temporary dictator—one citizen given near-kingly authority for a limited time. Once the crisis passed, power returned to the republic. Authority expanded when necessary, then contracted again.

Seen in that light, Machiavelli appears less like a scheming advocate of tyranny and more like a political realist responding to a country in turmoil. He believed Italy was in crisis. It needed strong leadership to unify it. But that leadership, in his view, was a means to an end: the eventual establishment of a stable and just republic.

So a classical republican, if pressed, would defend Machiavelli not because he enjoys scandalizing monarchists, but because he has actually read the Discourses. There we find not a patron saint of treachery, but a relentless anatomist of civic decay who insists that liberty depends on institutions sturdy enough to withstand human ambition rather than sermons about virtue (Machiavelli, 1531).

Machiavelli’s alleged villainy begins to look suspiciously like realism: republics survive not by assuming citizens are angels, but by arranging offices, laws, and rival powers so that private vice is conscripted into public stability. The classical republican sees in this a bracing antidote to political naiveté and a defense of popular self-government grounded in history rather than wishful thinking. Far from inventing tyranny, Machiavelli revitalized an older civic tradition—one that prizes mixed constitutions, citizen militias, and the productive friction between elites and the people (Pocock, 1975; Skinner, 1978).

To rehabilitate him, then, is not to celebrate ruthlessness; it is to recover a tradition that treats liberty as something maintained by structure, contestation, and occasionally unromantic clarity about human motives. If that makes him unsettling, it may be because he refuses to flatter our illusions.

Niccolò Machiavelli has long occupied the political imagination as the patron saint of schemers, the dark tutor of tyrants, the man who taught princes to smile while sharpening knives. That caricature rests largely on a narrow reading of The Prince. It is sustained by selective quotation and a cultural memory that prefers villains to civic theorists. Yet Machiavelli’s larger and arguably more important political work, the Discourses on Livy, reveals a thinker deeply committed to republican liberty, civic virtue, and the institutional architecture necessary to sustain a free commonwealth. Rehabilitating Machiavelli requires returning to the Discourses, understanding classical republicanism as a tradition, and tracing the substantial influence of both upon the political thought of the American Founding Fathers and the constitutional design of the United States.

Classical republicanism, in its ancient form, is rooted in the political thought of Aristotle, Polybius, and Cicero. It is characterized by a commitment to self-government, civic virtue, the rule of law, and a mixed constitution balancing monarchy, aristocracy, and democracy. The aim is not mere stability but liberty understood as non-domination—the condition in which citizens are not subject to arbitrary will (Skinner, 1978; Pettit, 1997). Republics require virtuous citizens and institutions capable of channeling conflict toward public ends. Polybius famously described Rome’s success as the product of a mixed constitution, combining consuls (monarchical element), senate (aristocratic), and popular assemblies (democratic), such that each checked the others (Polybius, trans. 2010).

By Machiavelli’s time, Renaissance Italy was fragmented, vulnerable, and politically volatile. Florence, Machiavelli’s home, oscillated between republican and oligarchic regimes. Into this setting, Machiavelli wrote not merely as an observer but as a participant in republican government. The Discourses on Livy, composed roughly between 1513 and 1519, are a sustained meditation on the first ten books of Livy’s history of Rome. They are not antiquarian exercises; they are theoretical interventions.

Early in the Discourses, Machiavelli addresses the structure of political orders and the superiority of mixed constitutions.

“I say that those who blame the tumults between the nobles and the plebs appear to me to be blaming those things that were the first cause of keeping Rome free” (Discourses, I.4).

This line is devastating to the image of Machiavelli as an apologist for unrestrained power. He is defending institutionalized conflict as a source of liberty. Political tension, when structured by law, produces freedom rather than chaos.

This is classical republicanism refracted through Renaissance realism. Machiavelli rejects the serene harmony imagined by some ancient theorists. He insists that conflict is endemic to political life.

“In every republic there are two diverse humors, that of the people and that of the great” (Discourses, I.4).

The people desire not to be commanded or oppressed; the great desire to command and oppress. The genius of Rome lay in giving each “humor” institutional expression. The tribunes of the plebs were not symptoms of decay but guardians of liberty.

Here Machiavelli revitalizes classical republicanism. Whereas Aristotle tended to view faction as a pathology, Machiavelli sees it as inevitable and potentially productive. John Pocock (1975) described Machiavelli as a pivotal figure in the “Machiavellian moment,” a crisis of civic virtue in which republics must confront corruption and contingency. Machiavelli modernizes republicanism by confronting instability head-on. He refuses to pretend that citizens are naturally virtuous. Instead, he asks how institutions can cultivate virtue and restrain vice.

Central to Machiavelli’s republicanism is the concept of civic virtue. A republic requires citizens willing to subordinate private interest to public good.

“For where the safety of one’s country is wholly at stake, no consideration of just or unjust, merciful or cruel, praiseworthy or ignominious should prevail; rather, putting aside every other consideration, one ought to follow entirely the policy that saves its life and maintains its liberty” (Discourses, III.41).

This passage, often cited to indict Machiavelli, in fact underscores his republican priorities. The object is not the aggrandizement of a prince but the preservation of a free polity.

Machiavelli also insists on the necessity of law.

“A republic that has not well ordered itself in its beginning cannot be ordered by chance afterward” (Discourses, I.2).

Founding is decisive. Institutions shape character. Laws structure ambition. Machiavelli’s admiration for Rome rests not on conquest but on constitutional prudence. He praises the Roman practice of appointing dictators in emergencies, but only within legal bounds. Extraordinary powers were temporary and circumscribed. A republic must have mechanisms for crisis without collapsing into tyranny.

This emphasis on institutional design places Machiavelli squarely within the classical republican tradition. Yet he adds a distinctive realism. He recognizes corruption as inevitable over time.

“As good customs, to maintain themselves, have need of laws, so laws, to be observed, have need of good customs” (Discourses, I.18).

Virtue and law are mutually reinforcing. When corruption sets in, extraordinary measures may be required to restore liberty. Machiavelli does not relish such measures; he fears decay more than conflict.

Quentin Skinner (1978) argues that Machiavelli rearticulated republican liberty as independence from arbitrary power. This conception of liberty would later shape Anglo-American political thought. Liberty is not mere non-interference but security against domination. Machiavelli’s Rome is free because no single class can dominate without resistance. Institutional checks embody freedom.

The rehabilitation of Machiavelli, then, begins by recognizing that The Prince is not the whole of his thought and may even be read as a study in how principalities are acquired and maintained in contrast to republics. The Discourses represent his normative preference. He states plainly:

“A republic has a longer life and maintains its good fortune longer than a principality” (Discourses, I.58).

The reason is structural. Power dispersed among citizens is less likely to decay into despotism.

The influence of this republican Machiavelli upon early modern political thought was profound. In England, thinkers such as James Harrington absorbed Machiavellian themes, especially the importance of a balanced constitution and the link between property distribution and political power (Pocock, 1975). The so-called “country” ideology, wary of corruption and centralized authority, drew heavily upon classical and Machiavellian sources.

These ideas crossed the Atlantic. Bernard Bailyn (1967) demonstrated that American revolutionary rhetoric was saturated with classical republican language—corruption, virtue, conspiracy against liberty. The Founding Fathers read widely in classical and Renaissance republican texts. While direct citations of Machiavelli in American pamphlets are relatively sparse compared to references to Montesquieu or Locke, his influence filtered through the broader republican tradition (Wood, 1969).

The American founders were acutely concerned with corruption. They believed that concentrated power invites tyranny. James Madison’s Federalist No. 51 famously states that “ambition must be made to counteract ambition” (Madison, 1788). This is Machiavellian in structure if not in citation. Institutionalized conflict becomes a safeguard of liberty. The separation of powers and checks and balances echo Machiavelli’s praise of Roman institutional tension.

Consider Machiavelli’s defense of popular participation. He writes that the people, when properly informed, are often wiser than princes:

“The people are more prudent, more stable, and of better judgment than a prince” (Discourses, I.58).

This is not flattery. It reflects his belief that collective deliberation, constrained by law, yields sound judgment. Madison similarly argues that a large republic can refine and enlarge public views through representation (Madison, 1788).

The American Constitution embodies a mixed regime. The presidency has monarchical features; the Senate originally represented state-based aristocratic elements; the House reflects democratic representation. Polybius would recognize the pattern. Machiavelli would recognize the logic. Conflict between branches is not an accident but a design feature.

Machiavelli also warned against standing armies and mercenaries, insisting that citizen militias preserve liberty.

“Mercenary and auxiliary arms are useless and dangerous” (Discourses, I.21).

Early American suspicion of standing armies, reflected in the Second Amendment and in revolutionary discourse, resonates with this theme. A republic depends on citizens willing to defend it.

Gordon Wood (1969) argued that the American Revolution was in significant part a republican revolution, aimed at replacing monarchical corruption with virtuous self-government. Machiavelli’s analysis of corruption—how republics decay when citizens lose civic spirit—provided a conceptual vocabulary for this anxiety. The founders’ fear of faction, however, diverged somewhat from Machiavelli’s embrace of conflict. Madison sought to multiply factions to prevent domination, whereas Machiavelli institutionalized binary tension between elites and people.

Yet even here, there is continuity. Machiavelli’s “two humors” anticipate Madison’s pluralism. Both thinkers assume that human beings are driven by interest and ambition. Neither trusts pure virtue. Instead, they design institutions that harness ambition for public ends.

The concept of a “Machiavellian moment,” as described by Pocock (1975), refers to the crisis in which republics confront their own fragility. The American founding was precisely such a moment. The Articles of Confederation proved inadequate; Shays’ Rebellion exposed instability. The Constitutional Convention of 1787 was an exercise in republican refounding. Machiavelli had warned that “in ordering a republic it is necessary to presuppose that all men are bad” (Discourses, I.3). This is not cynicism but prudence. Madison echoes the sentiment: “If men were angels, no government would be necessary” (Madison, 1788).

Machiavelli’s insistence on periodic renewal also finds expression in America. He argued that republics must “return to their beginnings” to restore virtue (Discourses, III.1). The American practice of constitutional amendment and judicial review can be seen as mechanisms of controlled renewal. They allow adaptation without revolution.

It would be excessive to claim that the framers sat with the Discourses open beside them as they drafted the Constitution. Intellectual influence is rarely so direct. Yet Machiavelli’s revitalization of classical republicanism shaped the Atlantic republican tradition that informed American political thought. His emphasis on mixed government, civic virtue, institutional conflict, and anti-corruption provided a framework within which later thinkers operated.

Rehabilitating Machiavelli also requires dispelling the notion that he glorified tyranny. He analyzed power with unsentimental clarity. He understood that politics is conducted by fallible humans. But in the Discourses, his normative allegiance is clear. He praises republics repeatedly and regards principalities as second-best. His harshest advice is often reserved for preserving liberty rather than consolidating despotism.

Machiavelli should be understood as a patriot concerned above all with freedom from domination. His republicanism is not abstract but civic. Liberty is maintained through participation, vigilance, and institutional design. The American experiment embodies many of these principles, albeit in a new context.

The irony is sharp. The man whose name became synonymous with manipulation helped shape a tradition devoted to constitutional restraint and civic freedom. Perhaps this is fitting. Political thought is often misunderstood when reduced to slogans. Machiavelli refused comforting illusions. He insisted that liberty requires structure, that virtue requires cultivation, and that conflict can be a guardian rather than a destroyer of freedom.

The American founders inherited a world already shaped by Machiavelli’s recovery of Roman republicanism. Through English commonwealth thinkers and Enlightenment interpreters, his ideas traveled, mutated, and embedded themselves in constitutional design. The United States Constitution is not Roman, Florentine, or purely Machiavellian. It is a modern synthesis. Yet its mixed structure, suspicion of concentrated power, and reliance on institutionalized rivalry bear unmistakable marks of the republican tradition Machiavelli revitalized.

To rehabilitate Machiavelli is not to sanitize him. He can be bracing, even unsettling. He forces readers to confront political reality without ornament. But when read in full, especially through the Discourses, he emerges less as the tutor of tyrants and more as a stern physician of republics. He understood that liberty is fragile, that corruption is constant, and that constitutional design is the art by which free peoples endure.

In an age still grappling with polarization, executive power, and civic decline, Machiavelli’s republican insights remain uncomfortably relevant. Conflict, properly ordered, can sustain freedom. Institutions matter more than intentions. Virtue must be cultivated, not presumed. These are not lessons for princes alone. They are lessons for citizens.

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Cartago Delenda Est

References

Bailyn, B. (1967). The ideological origins of the American Revolution. Harvard University Press.

Madison, J. (1788/2003). Federalist No. 51. In C. Rossiter (Ed.), The Federalist Papers. Signet Classics. https://avalon.law.yale.edu/18th_century/fed51.asp

Machiavelli, N. (1531/1996). Discourses on Livy (H. C. Mansfield & N. Tarcov, Trans.). University of Chicago Press.

Pettit, P. (1997). Republicanism: A theory of freedom and government. Oxford University Press.

Pocock, J. G. A. (1975). The Machiavellian moment: Florentine political thought and the Atlantic republican tradition. Princeton University Press. https://doi.org/10.23943/princeton/9780691172231.001.0001

Polybius. (ca. 2nd century BCE/2010). The histories (R. Waterfield, Trans.). Oxford University Press. https://www.gutenberg.org/files/44125/44125-h/44125-h.htm

Skinner, Q. (1978). The foundations of modern political thought (Vol. 1). Cambridge University Press.

Viroli, M. (1998). Machiavelli. Oxford University Press. https://doi.org/10.1093/acprof:oso/9780198780885.001.0001

Wood, G. S. (1969). The creation of the American republic, 1776–1787. University of North Carolina Press. https://archive.org/details/creationofameric0000wood

This week marks the anniversary of Gibbons v. Ogden (1824), a case that has been cited so often, stretched so far, and misused so enthusiastically that it may reasonably be considered the Commerce Clause’s original sin—or original achievement—depending on how much faith one retains in enumerated powers. This case is worth reflecting on, not as a plea for novelty but as a reminder of first principles.

Additionally, my examination of the primary statutory and judicial sources bearing on both the Commerce Clause and Gibbons v. Ogden has uncovered new and revealing evidence directly relevant to the issues addressed here—evidence that, to my knowledge, has not been examined in the existing constitutional scholarship.

An Originalist Understanding of the Meaning of Commerce

Justice Clarence Thomas’s concurring opinion in United States v. Lopez, 514 U.S. 549 (1995), provides evidence of the original meaning of “commerce.” “At the time the original Constitution was ratified,” he wrote, “‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” He further noted that the etymology of the word “commerce” meant “with merchandise” (United States v. Lopez, 1995, p. 585).

The Interstate Commerce Clause operates simultaneously as a power delegated to Congress and as a constraint upon state legislation. No clause in the Constitution has generated more litigation, more academic ink, or more judicial throat-clearing. From the Founding to the present day, disputes over the commerce power have revolved around three deceptively simple phrases: “to regulate,” “commerce,” and “among the several states” (U.S. Const. art. I, § 8, cl. 3). Those words have borne more interpretive weight than the Framers likely imagined—and considerably more than they carefully authorized.

Perhaps the most important evidence of the more limited original meaning of “commerce” is how frequently “commerce” was listed alongside other productive activities such as “manufacturing” and “agriculture.” At the Constitutional Convention, James Madison of Virginia proposed to grant Congress the power “[t]o establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades and manufactures” (Farrand, 1911, vol. 2, p. 322).

At the Massachusetts ratification convention, Thomas Dawes, a prominent revolutionary and legislator, observed that “[w]e have suffered . . . for want of such authority in the federal head. This will be evident if we take a short view of our agriculture, commerce, and manufactures” (Elliot, 1836, vol. 2, p. 57). At the New York ratification convention, Governor George Clinton referred to “[t]he situation of [each state’s] commerce, its agriculture, and the system of its resources” (Elliot, 1836, vol. 2, p. 261).

Such evidence consistently suggests that not all economic or gainful activity was considered “commerce.” This is an expansionist reading of the clause that, for many scholars, has become legal orthodoxy based on more recent cases such as Wickard v. Filburn, 317 U.S. 111 (1942), and Gonzales v. Raich, 545 U.S. 1 (2005). Rather, commerce was the activity of buying, selling, trading, and moving goods produced by such activities as manufacturing and agriculture.

When the Founding Generation Overruled the Founding Generation

The earliest and most foundational interpretations of those terms came in Gibbons v. Ogden, decided in 1824, when the Republic was still young enough to remember why enumerated powers mattered.

While some of my more legally astute readers may be saying to themselves: “Hang on a minute, McCulloch v. Maryland was decided in 1819.”

That is a common misunderstanding of McCulloch. A careful reading of Chief Justice Marshall’s decision only ever specifically applies an interpretation of the Necessary and Proper Clause as his justification. McCulloch is, in no sense, a Commerce Clause case.

Marshall, writing for the Court, offered an important test to understand the Necessary and Proper Clause: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” (McCulloch v. Maryland, 1819, p. 421)

The dispute in Gibbons v. Ogden arose from a New York law entitled “An Act for the Exclusive Right of Navigating the Waters of this State with Boats Moved by Fire or Steam” (New York, 1798), which granted Aaron Ogden a monopoly over steamboat operations within New York waters.

Monopoly, it should be noted, was precisely the sort of economic favoritism the Founders associated with the Old World and attempted—sometimes successfully—to avoid (Amar, 2005, pp. 107–109).

Enter Thomas Gibbons, who declined to respect New York’s legislative indulgence and instead operated steamboats traveling between New Jersey and New York.

Ogden sued to halt Gibbons’ operations, relying on the New York statute that crowned him king of the Hudson. Gibbons responded with a constitutional argument: New York’s law interfered with a federal statute, the Federal Coasting Act of 1793 (1 Stat. 305), under which he had been licensed to operate his vessels. If Congress possessed the authority to license ships engaged in interstate travel, then New York’s monopoly necessarily yielded under the Supremacy Clause (U.S. Const. art. VI). The New York courts were unimpressed by the doctrine of constitutional supremacy and enjoined Gibbons’ business anyway. Gibbons appealed to the United States Supreme Court, contending that the federal law was a valid exercise of Congress’s power under the Commerce Clause (Gibbons v. Ogden, 1824, pp. 2–6). Gibbons argued that a state may not regulate interstate commerce in defiance of a valid federal act (Gibbons, 1824, pp. 186–189).

The Supreme Court agreed. Writing for the Court, Chief Justice John Marshall delivered the first sustained interpretation of the Commerce Clause’s key terms, and in doing so shaped constitutional law for two centuries—though not always in ways he would have endorsed.

Ogden argued that the New York monopoly was constitutional because Congress lacked authority to regulate navigation between New York and New Jersey. Commerce, he insisted, meant only “traffic, to buying and selling, or the interchange of commodities,” and did not comprehend navigation (Gibbons, 1824, p. 189). If that were true, New York’s law would govern, and the monopoly would survive.

Marshall rejected this narrow construction, just as he had rejected similarly cramped readings of federal power in McCulloch v. Maryland (1819). He warned against “restrict[ing] a general term” applicable to many objects to only one of its possible meanings (Gibbons, 1824, p. 190). He wrote: “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse” (Gibbons, 1824, p. 189).

That intercourse, Marshall continued, described commercial interaction “between nations, and parts of nations, in all its branches,” including navigation, and could be regulated by prescribing rules for that intercourse (Gibbons, 1824, pp. 189–190).

Importantly for Originalists, this conclusion was not rhetorical improvisation. Founding-era usage of the term “commerce” routinely included navigation, shipping, and the rules governing maritime trade (Barnett, 2001, pp. 112–118). In this one sense, Chief Justice Marshall’s majority opinion is unremarkable. The Constitution was drafted by men who lived in port cities, insured cargoes, and argued over customs duties. They knew exactly what commerce meant, and it meant more than counting barrels on a dock.

Marshall then turned to the word “among.” He defined it as “intermingled with,” explaining that commerce “among” the states was commerce that concerned with more states than one (Gibbons, 1824, p. 194). The operative word here is “concerns,” which is another broadening term, inconsistent with the original understanding of commerce.

The meaning of “to regulate” presented a more difficult problem, and here the historical record is less cooperative with modern doctrine. The narrowest definition of “to regulate” is “to make regular”: to remove impediments, standardize rules, and ensure the free flow of trade (Barnett, 2001, pp. 139–143). Under this view, regulation does not ordinarily include prohibition.

This understanding was shared by several early jurists and legislators. In 1886, the House Judiciary Committee concluded that a proposed federal ban on oleomargarine exceeded Congress’s commerce power, reasoning that the Clause was intended to prevent state trade barriers, not to authorize Congress to erect its own (House Judiciary Committee, 1886, pp. 3–5).

The Supreme Court, however, has never formally adopted this limited definition. From the outset, Marshall treated the power to regulate commerce as coextensive with Congress’s other enumerated powers. In Gibbons, he famously declared:

“This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution” (Gibbons, 1824, p. 196). In other words, unless Congress decided it wanted to limit itself (and how could that possibly go wrong?) The Court was not going to do anything to reign them in.

This language has launched a thousand law review articles—and a fair number of judicial excesses—but it did not erase limits. As in McCulloch v. Maryland, Marshall insisted that enumeration itself presupposed restraint. The Commerce Clause identifies three objects of regulation: commerce with foreign nations, among the several states, and with Indian tribes. That enumeration necessarily excludes other forms of commerce (Gibbons, 1824, pp. 195–197).

Most notably, Marshall emphasized that Congress lacks authority over the “exclusively internal commerce of a state,” which he described as commerce that “may be considered as reserved for the state itself” (Gibbons, 1824, p. 195).

Here, Marshall aligned cleanly with the text of the Tenth Amendment, which confirms that powers not delegated to the United States are reserved to the states or the people. Enumerated powers mean something only if unenumerated powers are withheld—a principle later courts would salute ceremonially before ignoring operationally.

Applying this framework, the Court concluded that Congress had authority to license Gibbons’ vessels because they engaged in interstate commerce (Gibbons, 1824, pp. 213–215). New York’s law, insofar as it interfered with that federal regulation, was preempted and therefore unconstitutional (Gibbons, 1824, p. 221).

Marshall is often accused—sometimes fairly—of expansive and imprecise rhetoric regarding federal power. But in Gibbons, as in McCulloch, he simultaneously affirmed real limits that later courts would conveniently forget. Modern Commerce Clause jurisprudence relies heavily on Marshall’s broad definitions of “commerce” and “among,” while quietly discarding his insistence that purely internal state commerce lies beyond federal reach (Johnson, 1904, pp. 72–75). It’s easy to see why, when the words of the Commerce Clause are replaced with synonyms used by Marshall (“commerce” with intercourse and “among” with intermingled with)–the power seems to be broader than what we originally started with—or so later courts would rule.

Properly understood, Gibbons v. Ogden is not a blank check for federal power. It invalidated state protectionism, preserved national commercial unity, and reaffirmed that Congress’s powers—though real—are finite. That later courts mistook Marshall’s eloquence for infinity is not his fault. It is, however, our inheritance.

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Cartago Delenda Est

References

• Amar, A. R. (2005). America’s Constitution: A biography. Random House.

• An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same, 1 Stat. 305 (Feb. 18, 1793). United States Statutes at Large (Vol. 1). U.S. Government Publishing Office. https://www.govinfo.gov/link/statute/1/305

• Barnett, R. E. (2001). The original meaning of the Commerce Clause. University of Chicago Law Review, 68(1), 101–147. https://chicagounbound.uchicago.edu/uclrev/vol68/iss1/2/.

• Elliot, J. (Ed.). (1836). The debates in the several state conventions on the adoption of the Federal Constitution (Vol. 2, p. 57). J. B. Lippincott. https://oll.libertyfund.org/titles/elliot-the-debates-in-the-several-state-conventions-5-vols.

• Farrand, M. (Ed.). (1911). The records of the Federal Convention of 1787 (Vol. 2, p. 322). Yale University Press. https://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-vol-2.

• Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). https://supreme.justia.com/cases/federal/us/22/1/.

• Gonzales v. Raich, 545 U.S. 1 (2005). https://supreme.justia.com/cases/federal/us/545/1.

• House Judiciary Committee. (1886). Report on the regulation of oleomargarine. U.S. House of Representatives. https://www.govinfo.gov/content/pkg/SERIALSET-03460_00_00-173-1015-0000/pdf/SERIALSET-03460_00_00-173-1015-0000.pdf.

• Johnson, H. P. (1904). The interpretation of the Commerce Clause. Yale Law Journal, 13(2), 67–78.

• McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). https://supreme.justia.com/cases/federal/us/17/316/.

• New York (State). (1798). An act for the exclusive right of navigating the waters of this state with boats moved by fire or steam. In Laws of the State of New York (Vol. 4, 1797–1800). Weed, Parsons & Co. (Reprint published 1887). Internet Archive. https://archive.org/details/lawsstatenewyor40stagoog

• United States v. Lopez, 514 U.S. 549 (1995). https://supreme.justia.com/cases/federal/us/514/549.

• U.S. Const. art. I, § 8, cl. 3.

• U.S. Const. amend. X.

• Wickard v. Filburn, 317 U.S. 111 (1942). https://supreme.justia.com/cases/federal/us/317/111/.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

-Fourth Amendment

ICE’s Administrative Warrants Memo: What It Actually Says

A January 2026 Immigration and Customs Enforcement (ICE) internal memorandum — leaked to the press — asserts that ICE agents may enter private residences with so-called administrative warrants to effectuate immigration arrests, so long as they are in possession of a final order of removal and have an I-205 administrative warrant issued by DHS personnel rather than a warrant signed by a neutral magistrate judge. Traditionally, ICE has understood judicial warrants — warrants issued by a federal judge or magistrate — as necessary to enter homes for arrests absent consent or recognized exigencies. The internal memo, signed in May 2025 by Acting ICE Director Todd Lyons, suggests that administrative warrants suffice, a departure from longstanding practice. Administrative warrants are generated and signed within the Department of Homeland Security and may be approved or even authored by ICE agents themselves. This is not a warrant issued by a judge (with all that implies about neutral oversight).

Associated Press reporting on the leaked memo emphasizes that it counsels agents that they can enter private homes with administrative warrants and, by implication, have the force of law even where no judge has found probable cause. ICE officers are instructed to knock and identify themselves but may still forcibly enter with administrative warrants where occupants refuse. Congressional scrutiny and whistleblower disclosures have followed. Federal judges have already weighed in: in Minnesota a U.S. District Court ruled that forced entry with only an administrative warrant violated the Fourth Amendment, reminding the government that an entry without a judicial warrant is (under decades of precedent) a warrantless search.

Critics — including constitutional scholars and public-interest lawyers — argue the memo’s legal analysis is thin or absent. Anthony Sanders, an attorney at the Institute for Justice, put it like this: the memo “provides neither legal authority nor analysis,” and that its constitutional grounding is dubious at best. Under this interpretation, the memo undeniably breaches the Fourth Amendment’s fundamental protections against unreasonable searches and seizures, further undermining the sanctity of the home.

Though DHS has offered public comment only sparingly, the bundled narrative from reporting and analyses suggests that the memo’s goal is to clarify agency policy on immigration arrests. But clarifying a policy that departs from constitutional law — especially based on internal administrative warrants — lightens the weight of the Fourth Amendment more than a feather.

Constitutional Originalism and Administrative Warrants

The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The operative verbs are shall issue; the referent is a judicial warrant supported by probable cause and oath. The original framing arose to prohibit exactly the sort of “all-purpose,” non-specific warrants that British authorities had used in the colonial era.

Originalism focuses first on text: a warrant must issue upon probable cause, supported by oath or affirmation. That’s a clear, structured sequence: (1) neutral determination of probable cause; (2) oath or affirmation; (3) particularity. All of these imply a magistrate — a neutral decision-maker — at the front end. The idea that an agency employee can generate a warrant by fiat — no judicial oversight, and no neutral magistrate making probable-cause determinations — runs directly contrary to the apparent original meaning of “shall issue…supported by oath or affirmation.”

If there is any doubt about textual grounding, a deeper dive into founding-era history resolves it. The original understanding of the Fourth Amendment, according to the framers and ratifiers that gave it legal force — in context and practice — was intensely shaped by the colonial experience with general warrants and writs of assistance (more on those below). The Framers equated unreasonable with arbitrariness and unchecked executive power. To them, reasonableness required a judicial check. Administrative warrants, by design, are insulated from that check. For the DHS to issue tens of thousands of administrative warrants yearly without judicial review is an extraordinary departure from the constitutional text and historical practice.

One might try, as some modern jurists do, to reinterpret the Fourth Amendment as requiring only reasonableness and not a judicial warrant for every intrusion. But even that nuance flounders on the founding generation’s fixation on magistrates as the guarantors of liberty against arbitrary state intrusion. Warrantless searches, even if ultimately reasonable in some broad sense, were historically seen as dangerous, and the primary battleground in that debate was the home — the most sacred locus of personal security.

Thus, the originalist argument against ICE’s administrative warrant policy runs in three strands:

1. Text and structure: The warrant clause prescribes a warrant issuing upon probable cause with oath and particularity — all hallmarks of a judicial warrant. No textual hook suggests that the agency itself, approving their own warrant without neutral oversight, satisfies those conditions.

2. Historical grounding: In rejecting general warrants and writs of assistance — which authorized intrusive searches without particularized judicial oversight — the Fourth Amendment’s genesis demonstrates a deep historical anchor in limiting executive power and protecting the home against arbitrary intrusion.

3. Practice and principle: Early constitutional practice saw magistrates as indispensable for warrant issuance. Even modern jurisprudence that minimizes warrants’ role still traces the origins of Fourth Amendment protections to the colonial experience with general warrants and the activism of patriots — a history deeply antithetical to administrative warrants signed by enforcement officers.

Therefore, any interpretation of this legal document, upon the grounds by which all legal documents are to be interpreted, insists administrative warrants — especially for home entry — violate both text and historical understanding of search protections and the role of magistrates.

Writs of Assistance and the Historical Backdrop of the Fourth Amendment

If you enjoy entertaining historical grievances with legal teeth, the writs of assistance episode is where the Fourth Amendment’s backstory gets spicy.

In the 1760s, British colonial authorities used broad writs of assistance to pursue smuggled goods. These writs were general search warrants that authorized customs officers to enter homes — and sometimes vessels or warehouses — without specific cause or detailed direction. They were, in spirit and design, essentially administrative warrants on steroids: no particularity, no judicial discretion, no boundaries.

Enter James Otis Jr., a Massachusetts lawyer, statesman, and patriot of the first order. In 1761, in Paxton v. Gray, Otis challenged these writs in a lengthy oral argument before the Superior Court of Massachusetts. He invoked the principle that “a man’s house is his castle” and that such writs represented “one of the most essential branches of English liberty” being violated. Though the court ruled against Otis, his oration resonated throughout colonial America and, according to some contemporaries like John Adams, lit the spark for American independence.

Otis’s speech was rooted in common-law traditions that prized private property, individual autonomy, and dignity and opposed random government intrusion without oversight. The outrage wasn’t just aesthetic; colonials viewed these writs as instruments of arbitrary power that deeply undermined personal autonomy.

The colonists’ memory of writs of assistance directly shaped the framing of the Fourth Amendment. When the Bill of Rights was adopted in 1791, requiring warrants to be supported by probable cause and particularly describing what was to be searched was a deliberate repudiation of the general warrant model.

The historical controversy also drew in prominent figures like John Hancock, whose resistance to writs and subsequent public protest actions underscored that opposition to open-ended government searches was as politically and culturally significant as it was legally. This era marked a visceral turning point, in which privacy became a public virtue enshrined in legal text.

In that sense, the Fourth Amendment stands as the constitutional answer — not just a legalistic formula — to the political abuse of broad warrants and unbounded government intrusion.

Bringing It Home

To tie this all together: imagine the Framers peering across centuries, bemused and a little horrified that a modern bureaucracy would confidently conclude that it can justify home entries with internal paperwork that no judge has touched. They rejected general warrants and writs of assistance for good reason. Those writs were, to put it politely, overly enthusiastic about government power and eschewed individual liberty. Administrative warrants are the bureaucratic echo of those same concerns. The text of the Fourth Amendment carefully calibrates a warrant’s issuance and ties it to a neutral magistrate’s review precisely because past abuses seemed to bring tyranny to the doorstep. It is not merely tradition but constitutional design.

ICE’s memo looks, from the originalist vantage, like a bureaucratic burlesque: administrative convenience being elevated above a textual command that warrants shall issue upon probable cause supported by oath, with particularity in description — which historically, practically, and textually was meant to mean neutral judge. Even scholars who debate the contours of “reasonableness” admit that the historical hook of general warrants and the Fourth Amendment’s explicit warrant clause reflect a deeply structural bargain against arbitrary intrusion.

If administrative warrants are indeed interpreted as substitutes for judicial warrants for home entry, then the constitutional safeguards the Fourth Amendment erects will have been effaced by bureaucratic fiat. That is precisely what founding-era law and originalist interpretation warn against. It is no surprise that some federal judges have already ruled such forced entries unconstitutional, nor that constitutional law experts describe the memo’s legal footing as just plain wrong.

No reasonable assessment of ICE’s secretive declaration could conclude it rests on solid constitutional ground.

If it had, there would have been no need to work so hard to keep the public from an awareness of its existence.

An executive agency cannot amend the Constitution by memo, and calling it a warrant doesn’t make it one.

The Fourth Amendment is a limit, not a suggestion.

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Cartago Delenda Est

References:

• Constitution Annotated. (n.d.). Inspections Fourth Amendment. Legal Information Institute. Retrieved from https://www.law.cornell.edu/constitution-conan/amendment-4/inspections

• Cornell Law School Legal Information Institute. (n.d.). Fourth Amendment: Historical Background. Retrieved from https://www.law.cornell.edu/constitution-conan/amendment-4/fourth-amendment-historical-background

• Dictionary of American History entries and Encyclopedia.com. (2026). Fourth Amendment, historical origins (Excerpt). Retrieved from https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/fourth-amendment-historical-origins

• Otis, J. (1761). Speech against writs of assistance (historic speeches and analysis). Retrieved from James Otis speech archives and analysis.

• Reason Magazine. (2026, January 26). Leaked ICE memo claims agents can enter homes without judicial warrants. Retrieved from https://reason.com/2026/01/26/leaked-ice-memo-claims-agents-can-enter-homes-without-judicial-warrants/

• ICE administrative warrant policy sources:

• Foley Hoag. (2026, January). Leaked ICE memo claims authority to enter private residences without judicial warrants. Retrieved from https://foleyhoag.com/news-and-insights/publications/alerts-and-updates/2026/january/leaked-ice-memo-claims-authority-to-enter-private-residences-without-judicial-warrants/

• Minnesota federal court rulings and reporting. (2026). ICE agents can now forcibly enter homes without judge’s warrant. Retrieved from Wikipedia entries summarizing Operation Metro Surge.

ICE in Minneapolis and the Federal Power That Was Supposed to Stay Theoretical

The reports coming out of Minneapolis are the kind that end arguments by changing the subject. A woman dead in her car after an encounter involving ICE agents is not a debate prompt or a constitutional hypothetical. It is what happens when abstract theories of federal power are deployed in ordinary city streets. Cars are not borders. Minneapolis is not a port of entry. When immigration enforcement begins to resemble a police shooting, it becomes impossible to maintain the fiction that this is merely an administrative matter.

The public debate follows a familiar script. Supporters of aggressive interior enforcement insist that immigration is a federal responsibility, that Congress has legislated extensively, and that the executive branch not only may enforce those laws but must. Uniformity is invoked. Sovereignty is nodded at gravely. Necessity is offered as a constitutional solvent. States and cities that resist are blamed for forcing Washington’s hand: if locals will not help, federal agents must act alone, even if that means operating deep inside states that openly object.

Opponents respond that this approach corrodes trust, invites racial profiling, and turns civil immigration law into a roaming armed presence with little local accountability. They argue that sanctuary policies are not lawlessness but refusals to be commandeered. They note—correctly, and with historical support—that “just enforcing the law” is one of those phrases that reliably becomes uncomfortable in hindsight, and which never stand up to legal scrutiny.

Call me heartless if you like, but I’m not especially interested in the consequentialist arguments that rely on tragic incidents of protestors being shot, legal residents being aggressively arrested and detained until they could prove their innocence, or gun owners, lawfully carrying a firearm, being disarmed by federal agents, as having any bearing on the propriety —or lack thereof— of deploying armed federal agents into sovereign States.

The question that matters most is the one both sides largely skip: does the federal government actually have the constitutional authority to do this at all? Not whether it is effective. Not whether it is a necessity. And not even whether it polls well.

Simply whether that power even exists in the first place.

Modern immigration enforcement rests on an assumption so familiar it rarely gets examined: that the federal government possesses not only the authority to regulate immigration, but also the authority to enforce that regulation through routine, armed policing within the states. Legal analysis that takes constitutional structure and original meaning seriously challenges that assumption. Examining the text, founding-era practice, early commentary, and the later emergence of the plenary power doctrine reveals a federal immigration authority that has expanded far beyond its enumerated foundations.

Interior immigration enforcement increasingly resembles an exercise of general police power—precisely the power the Constitution reserves to the several States. The Tenth Amendment could not possibly be clearer about where the police powers lie. Its persistence rests less on constitutional legitimacy than on long-standing judicial tolerance.

Article I, § 8, Clause 4 grants Congress the power to establish a “uniform Rule of Naturalization.” The word “immigration” does not appear. This was not an oversight. Naturalization concerns the legal process by which a non-citizen becomes a citizen. It governs status, not location; allegiance, not presence. It involves forms, oaths, and time. It does not involve patrols, raids, detention facilities, or armed agents conducting traffic-stop-adjacent encounters hundreds of miles from any border. To say nothing of the recent evidence we have seen of ICE agents seizing the guns of lawfully carrying American citizens, exercising their natural right to keep and carry arms, wherever they go.

Regarding the clear distinction between naturalization and immigration, founding-era practice consistently reflects it. For decades after ratification, states regulated immigration directly. They imposed entry requirements, demanded bonds, restricted residency, and sometimes expelled newcomers they deemed burdensome. The federal government focused on citizenship and foreign affairs. No one thought this division strange. It was federalism operating as designed.

Treating the naturalization power as a general immigration power requires collapsing distinct concepts into a single, convenient authority. Originalism does not tolerate that kind of compression.

Just as important is what the Constitution does not say. There is no general power to regulate immigration as such. No authority to police mere presence. No grant of a federal police power over people living inside the states. That omission was deliberate. James Madison rejected the idea that the federal government possessed inherent authority over immigration by virtue of national sovereignty. Powers not delegated were reserved. Immigration regulation—distinct from naturalization—was among them. Thomas Jefferson agreed, repeatedly warning that necessity was not a substitute for enumeration.

These were not stray remarks. They reflected a shared understanding that the federal government lacked general authority over population movement within the states. Modern discomfort with that conclusion does not render it unclear retroactively.

So how did we get here? The short answer is judicial improvisation, later rebranded as doctrine.

The Plenary Power Doctrine

The plenary power doctrine is often treated as a constitutional given: the idea that the federal government has near-absolute authority over immigration, largely immune from meaningful judicial review. It sounds formidable. It is also remarkably flimsy once examined without ritual solemnity.

The first claim is that immigration power is inherent in national sovereignty. Because every sovereign nation must control its borders, the argument goes, the federal government must have whatever powers are necessary to do so. This is not constitutional interpretation; it is geopolitical intuition. The Constitution does not grant powers by implication from international norms. If it did, enumeration would be ornamental and the Tenth Amendment a sentimental flourish.

The second claim is that immigration falls under the purview of foreign affairs. This sounds sophisticated but accomplishes very little. Many subjects—crime, marriage, education, property—have foreign dimensions. They remain largely state matters. The power to negotiate treaties does not imply authority to patrol city streets. Foreign affairs power does not quietly smuggle in a domestic police power.

The third claim relies on the Migration or Importation Clause. That clause temporarily limited Congress’s authority before 1808. It did not grant a general power afterward. A limitation is not an authorization. Treating it as such is interpretive enthusiasm, not textual analysis.

The fourth claim invokes the Commerce Clause, at which point the argument begins to wobble. Mere presence is not commerce. If existing inside a state qualifies as interstate trade, then everything does, and enumeration collapses into performance art. Even the most elastic readings of the Commerce Clause eventually snap under that strain.

The final claim is the most candid: the federal government has done this for a long time; therefore, it must be constitutional. This is how unconstitutional practices become traditional. Duration does not create authority. Repetition does not amend text. If it did, the Constitution would be rewritten every budget cycle.

Even sympathetic jurists have acknowledged the doctrine’s weak footing. Justice Scalia conceded that Congress’s immigration authority rests on inference rather than an explicit grant. That is not a footnote. It is an admission that the doctrine survives by momentum rather than structure.

The plenary power doctrine persists not because it is well grounded, but because it is useful. Faced with political pressure, courts chose pragmatism over constitutional design. That choice may be understandable, in a grimly consequentialist sense. It is not binding on the text.

ICE, Minnesota, and the Cost of Pretending This Is Settled

What ICE does today bears little resemblance to administering the naturalization rule. It looks like policing. Arrests, detentions, surveillance, patrols, and the use of force within sovereign states—these are core functions of state authority. The federal government was designed to be limited, enumerated, and occasionally inconvenient. The Tenth Amendment was not added as decoration. It was a warning label.

When enforcement authority exceeds its constitutional limits, the consequences are not theoretical. They land on real people in ordinary places. If the federal government lacks authority to conduct general interior immigration enforcement, no amount of urgency cures the defect. Efficiency does not create power. Necessity does not amend the document. Executive directives do not transmute the absence of authority into its presence.

The question, then, is not whether immigration law should be enforced. It is whether it should be enforced this way, by this government, under this Constitution. The framers designed a system that slows power precisely when confidence is highest and patience is lowest. That design is often dismissed as impractical. Minneapolis suggests it may instead be preventative.

The Constitution requires consultation before enforcement becomes fatal. That insistence is inconvenient. It is also the point.

—

Cartago Delenda Est

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America’s political class has always had a special talent for turning simple questions into constitutional melodramas. Tariffs, for instance, began as a straightforward way to keep the lights on in 1789 and have now become a Rube Goldberg device in statutory form—complete with switches, pulleys, and a “National Emergency” lever that any president may apparently yank at will.

Two pending cases—Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections—invite the Supreme Court to sweep up two centuries of dust and ask whether (1) tariffs are always taxes and (2) Congress may hand the president the keys to the tariff machine without violating the small detail known as the Constitution. In the spirit of our national tradition, the answers are, unsurprisingly, more complicated than anyone wants them to be.

This Article interweaves two stories separated by centuries but united by a shared theme: Congress’s complicated relationship with its own constitutional obligations. The Founders fought bitterly over how to use the tariff power—but agreed unanimously on who possessed it. Modern Congresses, by contrast, have displayed an almost gymnastic flexibility in offloading that power onto the Executive, much as one might offload an unwelcome casserole brought by a distant relative.

Tracing the historical, constitutional, and statutory landscape—from Madison’s “revenue alone” tariffs (Madison, 1789) to President Trump’s invocation of the National Emergencies Act and the International Emergency Economic Powers Act—reveals a continuity of conflict, if not of principle. The argument that tariffs may be imposed at will by a single executive would have bewildered Hamilton, appalled Madison, and likely given Jefferson another reason to contemplate retiring to Monticello permanently.

I. A Historical Primer: When Tariffs Were Everyone’s Problem

The first major economic battle under the Constitution did not concern banks, internal improvements, or other staples of the Hamiltonian–Jeffersonian cage match. It concerned tariffs (Madison, 1789). Congress entered 1789 with an empty Treasury and a pressing need for revenue. James Madison, never one for needless drama, proposed an impost on imported goods for the singular purpose of raising money. He insisted that the first order of business—indeed, a matter of “the greatest magnitude”—was to secure revenue.

This modest plan was promptly mugged by special interests. Representative Thomas Fitzsimmons of Pennsylvania added protectionist proposals to nurture “infant manufactures,” thereby converting Madison’s revenue measure into a proto-industrial policy (Fitzsimmons, 1789). New England’s rum distillers denounced molasses duties as ruinous; Southerners fretted that foreign shipping restrictions would drive up freight rates; Pennsylvanians clamored for protective duties; everyone else counterclaimed that those same duties would unfairly subsidize Pennsylvania. In short, Congress behaved exactly as Madison’s Federalist Papers assured Americans Congress would not behave.

Nevertheless, the Tariff Act of 1789 passed through “mutual concession,” a phrase that here means “everyone surrendered just enough to avoid fistfights.” President Washington signed the measure on July 4, 1789, making tariffs, fittingly, the nation’s second statutory birthday present.

The compromise proved temporary. Hamilton’s First Report on Public Credit (1790) demanded more revenue; Congress duly raised tariff rates. Hamilton’s Report on Manufactures (1791) then urged that tariffs should no longer merely raise money but perform the more glamorous task of industrial subsidization. Hamilton admitted that this amounted to a “virtual bounty,” a term that modern policymakers might call a “strategic domestic investment”—or, more plainly, a subsidy wearing a clever mustache.

Jefferson and Madison countered with their own interventionist ambitions: tariffs as instruments of foreign policy (Jefferson, 1793). Confronted with British seizures of American shipping, Madison proposed retaliatory duties aimed squarely at British trade (Madison, 1794). Washington—ever the adult in the room—sent Chief Justice John Jay to negotiate a treaty that effectively prohibited such discriminatory tariffs. The Jay Treaty avoided war but rendered Jay so unpopular that he reportedly could “find his way across the country by the light of his burning effigies” (Chernow, 2004).

But through all these disputes—protectionist, retaliatory, or revenue-based—one point remained uncontested: only Congress could impose tariffs. Not Hamilton, not Jefferson, not Madison, and certainly not by any President alone.

II. The Original Meaning of Tariffs: Tax or Regulation?

The Founders were not confused about whether tariffs were “taxes” or “regulations,” although they enjoyed debating the matter with the enthusiasm of eighteenth-century law nerds. John Dickinson’s Letters from a Farmer in Pennsylvania (1767–1768) drew a clear line: a tariff imposed “for the sole purpose of raising a revenue” was a tax; anything else—especially duties designed to alter trade flows—was a regulation of commerce.

This distinction carried real constitutional weight. Article I, Section 8 grants Congress power to “lay and collect Taxes, Duties, Imposts, and Excises,” thereby authorizing revenue-raising tariffs. The Commerce Clause empowers Congress to regulate commerce with foreign nations, which includes prohibitory or regulatory tariffs. And Article I, Section 9 employs both categories—taxes and duties—to frame limits on congressional usage.

In other words, the Constitution presupposes the tax-versus-regulation distinction rather than dissolving it. This alone renders modern assertions that “all tariffs are taxes” or “all tariffs are regulations” constitutionally imaginative but historically thin.

III. From the Founders to the Present: Congress Rediscovers Abdication

If the early Congresses exhibited anything, it was a near-religious commitment to guarding their own constitutional turf. Legislative power was theirs; presidents executed laws; and never the twain should meet—unless you count George Washington reading the Constitution aloud to unruly cabinet members, which he likely wanted to do.

Modern Congresses, in contrast, have treated the delegation of tariff authority as a kind of political Marie Kondo exercise: discarding responsibilities that do not spark joy. The National Emergencies Act (1976) and the International Emergency Economic Powers Act (1977) exemplify this enthusiasm. The former allows the President to declare an emergency by sending Congress a note—an act of constitutional significance rendered alarmingly similar to a teenager texting “running late.” The latter empowers the President to “regulate importation” in response to the declared emergency (International Emergency Economic Powers Act, 1977).

President Trump made full use of this statutory architecture. By declaring emergencies under the National Emergencies Act and invoking IEEPA to “regulate importation,” he imposed tariffs through executive order. Under Dickinson’s formulation, these tariffs—having mixed revenue and regulatory purposes—qualify as commerce regulations rather than taxes. But classification aside, the more fundamental problem emerges: Did Congress have constitutional authority to hand the President this power in the first place?

IV. The Nondelegation Problem: When “Delegation” Starts to Look Suspiciously like Abdication

The Constitution vests “all legislative Powers herein granted” in Congress. While Congress may authorize the Executive to act upon specified criteria, it may not completely transfer its legislative authority (U.S. Const. art. I, § 1). Founding-era practice acknowledged that legislatures could allow the executive to determine facts triggering statutory consequences, but not to legislate under the guise of emergency management.

The National Emergencies Act and IEEPA, however, effectively empower the President to impose sweeping trade barriers with minimal congressional guidance. Courts have struggled to contain these delegations through doctrines such as the “major questions” principle, which requires Congress to “speak clearly” before authorizing executive actions of vast economic and political significance (see West Virginia v. EPA, 2022).

In tariff cases, the statutory language—however gibberish-laden—does speak clearly: Congress gave away the store. If this is a problem—and it is—the fault lies not with President Trump but with the lawmakers who wrote statutes so pliable one could use them as a yoga strap.

V. The Supreme Court’s Reluctance to Police Congress

The modern Court has readily invalidated state laws, expansive agency regulations, and executive overreach. Yet it has displayed a near-monastic reluctance to strike down federal statutes for exceeding Congress’s enumerated powers. The Affordable Care Act survives today on the strength of interpretive acrobatics that would make a circus troupe envious (NFIB v. Sebelius, 2012).

Lower courts have nibbled around the edges of the Trump tariffs—voiding some for failing to meet statutory requirements—but none has tackled the underlying structural problem: Congress may not constitutionally authorize a President to unilaterally impose tariffs at will.

VI. The Path Forward: Restoring Constitutional Order

If the Supreme Court wishes to reaffirm separation-of-powers principles without plunging itself into the political Thunderdome, the tariff cases present a golden opportunity. Striking down portions of the National Emergencies Act or IEEPA would simply require telling Congress to exercise that power itself—or at least define more precisely when the President may exercise it on Congress’s behalf.

Despite what the corporate media and much of the American political class insist, this is not judicial supremacy. It is simply constitutional housekeeping.

Conclusion

From the Founders’ battles over “revenue alone” imposts to modern disputes over emergency tariffs by executive order, one principle has endured: tariffs are complicated, and Congress is often tempted to complicate them further. But the Constitution’s structure remains stubborn. Legislatures legislate. Executives execute. Presidents do not impose tariffs any more than they mint coins, declare war, or decide the proper number of justices on the Supreme Court.

That the early Congress understood this while modern Congresses pretend otherwise is one of the great ironies of American constitutional development. The Founders fought over tariffs, cursed tariffs, and occasionally burned effigies over tariffs—but they never doubted where tariff power belonged. If the modern Court chooses to remember that lesson, it will not be forging new doctrine. It will merely be dusting off the original owner’s manual.

References

Chernow, R. (2004). Alexander Hamilton. Penguin Press.

Dickinson, J. (1983). Letters from a farmer in Pennsylvania (B. Bailyn, Ed.). Harvard University Press. (Original work published 1767–1768)

Fitzsimmons, T. (1986). Remarks on tariff amendments. In C. Tansill (Ed.), Documents of the First Federal Congress. Government Printing Office. (Original remarks delivered 1789)

Hamilton, A. (1966). Report on public credit (1790). In H. Syrett (Ed.), The papers of Alexander Hamilton (Vol. 6). Columbia University Press.

Hamilton, A. (1966). Report on manufactures (1791). In H. Syrett (Ed.), The papers of Alexander Hamilton (Vol. 10). Columbia University Press.

International Emergency Economic Powers Act, 50 U.S.C. §§ 1701–1707 (1977).

Jefferson, T. (1984). Report on commerce (1793). In J. Boyd (Ed.), The papers of Thomas Jefferson (Vol. 26). Princeton University Press.

Madison, J. (1981). Remarks on impost legislation (1789–1794). In C. Hobson & R. Rutland (Eds.), The papers of James Madison. University of Chicago Press.

National Emergencies Act, 50 U.S.C. §§ 1601–1651 (1976).

U.S. Const. art. I, §§ 1, 8–9.

West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022).

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“An Act Against the Constitution is Void”

~James Otis Jr. (1761)

It is high time the Supreme Court took another look at its abysmal ruling in the disturbingly incoherent 2005 case of Gonzalez v. Raich.

Today, we are going to discuss why Gonzales v. Raich was a Constitutional Wrong Turn—and why Canna Provisions v. Bondi Offers the Court a Chance to Find Its Way Back.

The Supreme Court’s 2005 decision in Gonzales v. Raich will forever hold a special place in the pantheon of federalism misadventures—a sort of constitutional Bermuda Triangle where textual limits vanish without warning. According to the majority, Congress’s power to “regulate Commerce… among the several States” magically includes the power to forbid the cultivation and use of medical marijuana that never crossed state lines, never entered a market, and never so much as made eye contact with interstate commerce (Gonzales v. Raich, 2005). To call this reading expansive is like calling the Pacific Ocean damp.

Those of you who have read my first book, Constitutional Sleight of Hand, will recognize Raich as the case that was so constitutionally irrational that it sparked the very interest in constitutional law that continues to drive my work to this day.

Fortunately, the Supreme Court has recently received a cert petition in a case known as Canna Provisions Inc. v. Bondi that seeks to expressly overturn the Court’s opinion in the Raich case.

But before we get to the pending case, what exactly was the Gonzalez v. Raich opinion, I hear you asking.

That is a very handsome question, so let’s briefly examine the facts, issues, and rules that are essential to understand Raich:

• California law, under the Compassionate Use Act of 1996, allows the use of marijuana for medical purposes with a physician’s recommendation.

• Respondents Raich and Monson are California residents who use marijuana for serious medical conditions under their physicians’ recommendations.

• Monson cultivates her own marijuana, while Raich relies on caregivers to provide her with locally grown marijuana.

• Federal DEA agents seized and destroyed Monson’s marijuana plants despite her compliance with California law.

• Respondents argued that enforcing the federal Controlled Substances Act (CSA) against them violated the Commerce Clause, the Due Process Clause, the Ninth and Tenth Amendments, and the doctrine of medical necessity.

The Question Presented in the cert petition for Raich was:

Does Congress’s power under the Commerce Clause to regulate interstate markets for controlled substances include the authority to prohibit the local cultivation and use of marijuana for medical purposes in compliance with state law?

The Supreme Court, rather than turning to an original understanding of the meaning of the text of the Constitution itself— Namely, the meaning and scope of the Commerce Clause, or basing their understanding on past Supreme Court precedent, or at least turning to an authoritative secondary source of information, such as Black’s Law Dictionary to define the term “commerce” given its definition is fundamentally a legal term of art, the Supreme Court somehow found it acceptable to turn to a modern, standard English dictionary, which gave the term commerce a legally unjustifiable definition that somehow included the “consumption” of goods as commerce. Even if those goods never crossed any state line and were never part of some commercial arrangement to sell, borrow, or transfer them.

It was almost impressive to see how creative the Court got in crafting its specious reasoning to uphold enforcement of the federal Controlled Substances Act (CSA), 21 U.S.C.S. § 801 et seq., and subsequently deny the declaratory and injunctive relief sought by the respondents (Angel Raich & Diane Monson) in accordance with California’s Compassionate Use Act, Cal. Health & Safety Code § 11362.5 (2005).

The Court concluded Angel Raich’s decision to grow and consume her own personal supply of medical marijuana, took away from the marijuana she would have otherwise “consumed” as part of the black market drug trade that has come into existence for no other reason than the federal government has chosen to regulate the possibility of personal marijuana consumption into legal non-existence. Because these hypothetical “black market” drug dealers, whose marijuana it was assumed must have crossed some state border at some undefined point, at some undefined time in the history of its transfer to the individual who ultimately made the choice to consume it— means that individually grown and consumed marijuana had an effect on the sale of illegal marijuana, meaning that the individual consuming their personally grown marijuana has engaged in interstate commerce, by explicitly NOT engaging in interstate commerce. Therefore their personally grown and consumed marijuana is subject to federal regulation.

Simple….

This is the most absurd expansion of “commerce” since landmark 1942 Commerce Clause case, Wickard v. Filburn.

This was also the first case that made it absolutely, crystal clear to me, the supposedly great sage of Constitutional Originalism, Justice Antonin Scalia, while talking a great game, exercised what I have frequently referred to as “half a loaf Originalism.”

What I am referring to is what I consider to be a “this far and no further” approach to originalist interpretation by Justice Scalia, in which he, in a pathetically defeatist manner, seemed to simply accept the proposition that the Constitution has been misinterpreted throughout its entire history to get to the very place we find ourselves now where the Supreme Court is all too eager to consider the unjustified encroachments of constitutional authority as somehow valid simply because the very, very flawed understanding of Stare Decisis that the court has adopted in all things, and there is nothing to be done in fixing those past errors, despite the fact he recognized that no Originalist could possibly justify the federal government’s current size and scope as squaring with constitutional limitations. Even when, as in this case, it also strays well into realms of power explicitly granted to the several States. Such as the grant of “police powers” to the several States, according to the text of the Tenth Amendment.

Justice Clarence Thomas—who in 2005 was the lone member of that Court still in possession of his original sense of constitutional geography—saw the problem immediately. His Raich dissent reads like a guide for anyone still trying to find the Commerce Clause on a map drawn by the Framers rather than one sketched by a Court drunk on rational-basis deference. Thomas wrote, with diplomat-level restraint, that:

“[I]f Congress can regulate this [intrastate marijuana], then it can regulate virtually anything.”

~Gonzales v. Raich, 2005, Thomas, J., dissenting

In other words, if growing a medicinal plant for personal use at home is interstate commerce, then baking cookies for your grandmother is basically engaging in the global sugar trade.

The constitutional misadventures of Raich are even more galling when viewed through the lens of post-Wickard v. Filburn history. For decades, Wickard (1942) had set a precedent so expansive that virtually any local activity could be shoehorned into Congress’s Commerce Clause authority. Enter United States v. Lopez (1995) and United States v. Morrison (2000), the first major attempts since Wickard to push back against the federal government’s audacious self-conception of it’s Commerce Clause powers.

In Lopez, the Court held that possessing a gun near a school is not an economic activity substantially affecting interstate commerce (United States v. Lopez, 1995). In Morrison, it held that gender-motivated violence is similarly beyond Congress’s reach (United States v. Morrison, 2000).

These cases inspired a judicial philosophy known as New Federalism, which sought to reclaim State sovereignty from the voracious expansion of federal power. New federalism rested on the idea that states are not mere administrative subdivisions of the federal government, but sovereign political entities with their own reserved powers under the Tenth Amendment (Hamburger, 2024; Somin, 2006).

Gonzales v. Raich, however, is generally viewed as an explicit repudiation of this ideal. By holding that Congress could regulate homegrown medical marijuana because it might, in some hypothetical chain of economic events, affect interstate commerce, the Court effectively told states, “Sovereignty? Cute idea. We prefer control.” The brief glimmer of hope offered by Lopez and Morrison was extinguished in a puff of rational-basis smoke.

Fast forward nearly two decades, and Canna Provisions Inc. v. Bondi has arrived at the Supreme Court’s certiorari doorstep, politely requesting that the Court rectify the mess it made.

The questions presented in Canna Provision’s cert petition are:

Petitioners brought this case to challenge the validity of the Court’s ruling in Gonzales v. Raich, 545 U.S. 1 (2005), that Congress may prohibit the purely local production, distribution, and possession of marijuana that is authorized by state law. A narrow majority held that the Court “need not determine whether’ those ‘activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding,” id. at 22, and that Congress could rationally conclude that those activities would frustrate its goal of eliminating interstate marijuana. Multiple developments have undermined Raich’s rationale and outcome. Following Raich, the Court has applied a more rigorous standard to Congress’s regulation of traditionally local concerns. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 560 (2012) (opinion of Roberts, C.J.) (holding that the individual mandate was not incidental to interstate regulation). Technological advances have made state-regulated marijuana distinguishable from interstate marijuana, and Congress and the Executive Branch have embraced that distinction with legislation and policies against prosecuting state-regulated marijuana activities. Dozens more states— 38 total—have enacted marijuana programs, and interstate commerce in marijuana has dropped.

Question 1: Should the Court overrule Raich’s holding that Congress can regulate purely local economic activity if there is any “rational basis” that ii such activity substantially affects interstate commerce?

Question 2: Has Congress validly prohibited the purely local growing, distribution, and possession of state-regulated marijuana under the Commerce Clause and Necessary and Proper Clause?

The petition is a kind of constitutional Lost and Found notice—“Dear Court, you seem to have misplaced the idea of enumerated powers. We believe it slipped out of your pocket sometime around June 2005.”

What’s more, the first question presented challenges the majority opinion in the Raich case, drafted by Justice Stevens and joined by Justices Kennedy, Souter, Ginsburg, and Breyer. This was the opinion that sought to argue that, in defining “commerce,” we should not turn to an original understanding of the meaning and scope of the Commerce Clause, which provides the foundational understanding of the legal meaning of the term “commerce.”

This, despite the fact that there was ample evidence of the original understanding of the meaning and scope of the Commerce Clause to be found in the records of the Philadelphia Convention of 1787 (at which the Constitution was drafted by our Framers) as well as the various state ratifying conventions (at which the people of the several States gave legal force to the Constitution.)

Nor should we turn to Supreme Court precedent that sought to define the meaning and scope of the term “commerce” that can be identified in foundational cases, such as Gibbons v. Ogden (1824).

In fact, the majority opinion of Justice Stevens failed to use what lawyers and legal scholars refer to as authoritative secondary sources, which means everything that explains, interprets, critiques, or contextualizes the law rather than creating it. This includes legal dictionaries, encyclopedias, treatises, law review articles, annotations, and so forth. essentially any source that can help define a word or concept as a legal term of art.

Instead, the majority opinion based its expansive view of the Commerce Clause on a modern, standard English dictionary definition of “commerce,” which introduced a new conception to American jurisprudence: that the term “commerce” can be applied to the act of consumption.

Whereas the second question presented explicitly asks the Court to overturn Justice Scalia’s lone concurrence in the Raich case. While Scalia rejects and rightly mocks the majority opinion for turning to a common English dictionary to define commerce, Scalia wholly supported the primary holding that Raich & Monson had engaged in a federally regulated activity, using (if you can believe this) an even more convoluted argument than the majority’s redefinition of commerce, as a means to finding their rationale of the hypothetical “black market” marijuana argument.

While Justice Scalia at least recognized Raich & Monson didn’t engage in constitutionally regulable “commerce” under the Commerce Clause, he instead rested his argument on an expansive reading of N.L.R.B v. Jones & Laughlin Steel Corp (1937) and United States v. Darby (1941) which gave us a new legal doctrine known as the “Substantial-Effects Test,” as well as a Wickard v. Filburn doctrine called the “Aggregation Principle”.

This meant that Justice Scalia’s argument was, in fact, based on the Necessary & Proper Clause, although he never clearly states that at any point in his concurrence. According to Scalia:

“Congress could regulate some local non-economic activity as part of a larger regulation of interstate commerce, whether or not the local activity had a substantial effect on interstate commerce.”

~Gonzalez v. Raich, 545 U.S. 1, 61 (Scalia, A., concurring).

Furthermore, as I discussed in my book, Constitutional Sleight of Hand:

“Crucially, Scalia thought the Court must defer to Congress’s Judgement. The Legislature, and not the Judiciary, should decide whether the regulation of local non-economic conduct, in this case the cultivation of local marijuana that was never bought nor sold, was essential to the Controlled Substances Act’s broader regulatory scheme” (Fiedler, 2022).

In other words, the Court should abdicate its fundamental responsibility of interpreting what the law means and whether it falls within the meaning and scope of a particular federally enumerated power. It’s up to Congress to police itself and define the scope of its Constitutional authority.

Indeed, scholars have been pointing out the flaws in both interpretations ever since. Ilya Somin argues that Raich is “one of the Supreme Court’s worst-ever federalism decisions,” an accomplishment not easily achieved given the competition (Somin, 2006/2024). He notes that the federal government once needed a constitutional amendment—the Eighteenth—to prohibit the purely intrastate production of alcohol. If lawmakers of the Prohibition era didn’t think they could reach the homebrew hobbyist under the Commerce Clause, one suspects they understood something the Raich majority later forgot: in-state activity is not interstate commerce merely because Congress wishes it were.

And then there’s the present federal regime, which resembles national prohibition about as much as a colander resembles a submarine. As Justice Thomas observed in 2021:

Today’s marijuana laws amount to a patchwork quilt made by a committee that ran out of thread halfway through (Standing Akimbo v. United States, 2021, Thomas, J., statement).

States permit and regulate cannabis markets openly—sometimes exuberantly—while federal law remains on the books but sporadically enforced, like a neighborhood watch sign nobody has read since 1978. The result is a Wonderland of contradictions: businesses allowed to operate by state law are simultaneously forbidden by federal law from hiring security guards to prevent being robbed. One can be both “law-abiding” and a federal felon on the same day, sometimes simultaneously.

Philip Hamburger adds another dimension: the rational-basis test adopted in Raich is so deferential that it politely excuses judges from determining whether Congress actually has the constitutional authority it claims (Hamburger, 2024). Instead, judges need only ask whether Congress might have had a reason—or at least a rational-sounding bedtime story—for believing so.

This approach essentially comes across as Chevron deference’s rebellious cousin: where Chevron asked courts to defer to agencies, Raich directs them to defer to Congress itself on the scope of Congress’s own powers. A concept which is, and always shall be, entirely anathema to the very notion of a federal republic, which our framers were quite careful and deliberate in crafting.

To put it in everyday terms, it’s like letting a teenager decide the appropriate curfew based solely on whether the teenager believes the curfew is reasonable.

To put it in equally understandable, yet more rhetorically stark terms, much the same way the Court’s overruling of Chevron v. N.R.D.C. (1986) was nothing short of an originalist/textualist wet dream, Canna Provisions Inc. v. Bondi is well on its way to be the most significant sheet-soiling, pajama-ruining originalist decision since the Loper Bright Enterprises v. Raimondo (2024) decision that overturned Chevron. Assuming, of course, the Supreme Court grants the petition for cert.

But, as I have discussed in the past, the Court is not comprised of the 6-3 conservative/liberal split most people assume. It constitutes a 3-3-3 split of principled originalists (Clarence Thomas, Neil Gorsuch & Samuel Alito), 3 moderate, if inconsistent, conservatives (Chief Justice John Roberts, Bret Kavanaugh & Amy Coney Barrett), and the liberals (Sonia Sotomayor, Elana Kagan & Ketanji Brown Jackson). There is no way to say with certainty that they have the four votes needed to grant cert on the merits, much less the five votes needed to overturn Raich.

Still, I’m cautiously optimistic that a coalition on the Court might be willing to overturn Raich—one perhaps anchored by Thomas, Gorsuch, Alito, Barrett, and Jackson. It certainly helps that none of the current Justices, save Thomas, participated in the original decision. And Thomas, of course, was Raich’s fiercest critic. Judges tend to be highly reluctant to overturn cases they had a hand in deciding.

There’s another glimmer of hope as well. The Chief’s carefully calibrated majority opinions in Loper Bright Enterprises v. Raimondo and S.E.C. v. Jarkesy (2024) signaled a clear and deliberate break from the Court’s long habit of yielding to the ever-growing powers Congress and federal regulators assert for themselves. That shift gives me some reason to think a solid six- or even seven-Justice bloc might be willing to repudiate Raich outright.

The logic for overturning Raich is not just found in the lack of an enumerated power Congress could point to, in justifying the passage of the Controlled Substances Act of 1970. It is equally derived from the Tenth Amendment—often treated as constitutional wallpaper, appreciated only by those who enjoy the decorative arts. But as Professor Hamburger notes, it is more than a tautology; it is a recognition that Americans retain both structural and textual rights against federal overreach (Hamburger, 2024).

When the Court adopts a standard allowing Congress to regulate matters “not in fact” within its enumerated powers, it violates not only the Commerce Clause but the Tenth Amendment right to be left alone by a federal government that has wandered beyond its jurisdiction like a particularly determined mall cop (U.S. Legal, 2025).

This brings us back to Canna Provisions, which asks the Supreme Court to revisit Raich and—dare we dream—correct it. The cert petition is shepherded by an all-star team (Boies et al., 2024) and supported by briefs from across the ideological spectrum. Libertarians, conservatives, and a growing number of progressives have discovered that federalism, once treated as an eccentric uncle with too many opinions, has become indispensable in an era where federal power swings dramatically with each new administration (Somin, 2019). Limits matter, particularly when the federal government’s oscillations risk sweeping away entire state policy landscapes.

Fixing Raich would not solve every structural problem in the federal system, nor would it resolve debates over drug policy. As Professor Hamburger candidly notes, skepticism about drug legalization need not imply enthusiasm for a federal government whose powers have become so elastic they could double as bungee cords. The issue is older and more fundamental: we cannot afford a constitutional framework in which Congress has nearly unlimited authority, and courts have nearly unlimited reluctance to say so.

The Court corrected Chevron Deference last term in Loper Bright v. Raimondo (2024), reasserting that judges—not agencies—must interpret the law. Canna Provisions offers the Court a parallel opportunity: to reassert that judges—not Congress—must determine the limits of Congress’s powers. This is not judicial imperialism. It is a judicial responsibility.

And so the stage is set. If the Court grants certiorari, Canna Provisions may finally give Justice Thomas the moment he has earned: the day the Court overrules Raich, and the constitutional sky grows a shade clearer.

However, just when one might think the Court could be persuaded by originalist reasoning, there’s a cautionary tale in FDA v. Wages (2021). In that decision, the Court banned flavored nicotine vapes while allowing the nicotine itself to remain on the market—a regulatory choice that can only charitably be described as “subtle.” Here, the Court displayed a mastery of bureaucratic pettifoggery, punishing the candy coating while leaving the substance at issue intact. The precedent demonstrates that the justices are often more comfortable with partial, symbolic interventions than with directly confronting the constitutional question. One can almost hear them muttering, “Why correct decades of misinterpretation when we can fiddle with flavors instead?”

While FDA v. Wages does not lend itself to a one-to-one comparison with Canna Provisions Inc. v. Bondi, the precedent in Wages suggests that the Court may be reluctant to overturn Raich. Particularly when partial regulatory solutions allow the Court to sidestep confronting the scope of Congress’s power.

The Court—much like the ancient pantheons of pagan gods—is fickle, its will often beyond the comprehension of mortal men.

The stakes in Canna Provisions remain high. If the Court grants cert, there is a great potential to cast light on perhaps the most abused power in all of constitutional law. If the Court fails to grant cert, Raich will continue lumbering along—an undead precedent, gnawing steadily at the idea of limited federal power. One hopes the justices prefer sunlight to zombies.

Either way, one thing is undeniable: Raich was wrong, and the only question is whether the Supreme Court has the courage—or attention span—to admit it.

~Cartago Delenda Est

References

21 U.S. Code § 801 - Congressional findings and declarations: controlled substances. (2025). https://www.law.cornell.edu/uscode/text/21/801

Barnett, R. (2001). The Original Meaning of the Commerce Clause. The University of Chicago Law Review, 68(1), 101. https://doi.org/10.2307/1600443.

Boies, D., et al. (2024). Petition for certiorari, Canna Provisions Inc. v. Bondi. https://www.supremecourt.gov/DocketPDF/25/25-518/380647/20251024180126966_25-%20Petition.pdf

CA Health & Safety Code § 11362.5. (2024). Justia Law. https://law.justia.com/codes/california/code-hsc/division-10/chapter-6/article-2/section-11362-5/

Canna Provisions v. Bondi Docket. (2025). Supremecourt.gov. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/25-518.html

Congress.Gov. (2024). The Necessary and Proper Clause: Overview | Constitution Annotated | Congress.gov | Library of Congress. Constitution.congress.gov. https://constitution.congress.gov/browse/essay/artI-S8-C18-1/ALDE_00001242/

FDA v. Wages, 593 U.S. ___ (2021).

Gibbons v. Ogden, 22 U.S. 1 (1824).

Gonzales v. Raich, 545 U.S. 1 (2005).

Hamburger, P. (2024). Commentary on Canna Provisions v. Bondi and the rational-basis test.

Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024).

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

Somin, I. (2006). Federalism and the limits of the Commerce Clause: A response to Raich. Cornell Law School Symposium.

Somin, I. (2019). Federalism in the age of executive overreach.

Standing Akimbo, LLC v. United States, 594 U.S. ___ (2021) (Thomas, J., statement).

United States v. Darby, 312 U.S. 100 (1941).

United States v. Lopez, 514 U.S. 549 (1995).

United States v. Morrison, 529 U.S. 598 (2000).

U.S. Legal (2025). Rule of Construction Law and Legal Definition | USLegal, Inc. Uslegal.com. https://definitions.uslegal.com/r/rule-of-construction.

Wickard v. Filburn, 317 U.S. 111 (1942).

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After Bruen dared to suggest that states may not deny citizens carry permits on the theory that self-defense is somehow an exotic hobby, several states responded with sweeping location-based restrictions. Hawaii’s version bars permit holders from carrying on publicly accessible private property unless the owner gives “unambiguous written or verbal authorization” or posts signage so clear and conspicuous it could double as modern art. The Ninth Circuit embraced this approach in Wolford v. Lopez (2024), apparently comforted by the idea that permission should be the default rarity.

That position conflicts directly with the Second Circuit’s decision in Antonyuk v. James (2024), which ruled that New York’s similar ban violated the Second Amendment by flipping the historical presumption on its head. Traditionally, carry was permitted unless expressly forbidden—not the other way around. Inventing a brand-new nationwide rule that “no guns unless there’s a sign” had about as much historical support as adding emojis to the Constitution.

To justify Hawaii’s inverted presumption under Bruen’s “text, history, and tradition” test, the state pointed to two historical specimens: a 1771 New Jersey antipoaching law and an 1865 Louisiana statute with the dubious pedigree of the Black Codes. Judge Lawrence VanDyke, dissenting from the Ninth Circuit’s refusal to rehear the case, gently noted that one law targeted armed trespassers hunting on other people’s land and the other was part of a systematic effort to disarm newly freed Black citizens. Not exactly the shining lineage a state usually hopes to parade before the Supreme Court.

Sensing that the situation had begun drifting into the realm of constitutional fan fiction, the United States filed an amicus brief supporting certiorari. The federal government explained that five states, Hawaii among them, have adopted a novel rule allowing carry on private property only if the owner posts an affirmative “guns welcome” sign. The brief noted that resolving this issue would assist courts, legislatures, and — most quaintly — ordinary Americans merely trying to understand whether they may legally step onto a sidewalk café without violating a newly invented historical tradition.

Wolford’s petition also asked the Court to address a second question: whether the Ninth Circuit erred by leaning almost entirely on post-Reconstruction laws to justify modern restrictions, despite several circuits insisting that Bruen requires primary reliance on Founding-era history. The Court declined to take that issue directly, but the briefing all but guarantees it will make an appearance. For those keeping score at home, Mark W. Smith has already written the polite reminder “Attention Originalists: The Second Amendment Was Adopted in 1791, Not 1868,” in case anyone needed help remembering which century they’re in.

New Jersey, never one to be left out of a constitutional experiment, enacted its own prohibition on carry across essentially all private property without the owner’s express consent. But on September 10, after briefing in Wolford had wrapped, the Third Circuit in Koons v. Attorney General of New Jersey found the ban likely unconstitutional as applied to property open to the public. That ruling only strengthened Wolford’s challengers and added yet another voice to the growing judicial chorus asking what, exactly, these “reverse presumption” states think history is.

The Supreme Court now steps into familiar territory: an outlier law with no meaningful historical antecedent, much like the handgun bans struck down in Heller and McDonald, or New York’s discretionary licensing scheme in Bruen. However the Court resolves Wolford, its decision will almost certainly shape the fate of the many Second Amendment cases accumulating like snowdrifts in the handful of states still attempting to out-maneuver Bruen. The result promises to offer a clearer view of where constitutional tradition ends and modern improvisation begins — a distinction that has grown increasingly relevant in the post-Bruen era of regulatory invention.

Cartago Delenda Est

• An Act For The Preservation Of Deer And Other Game And To Prevent Trespassing With Guns. (1771, December 21). Loc.gov; National Archives. https://tile.loc.gov/storage-services/service/rbc/rbpe/rbpe09/rbpe099/09903000/09903000.pdf

• Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024) - Opinion of the Court. (2024, September 6). Justia Law. https://law.justia.com/cases/federal/appellate-courts/ca2/22-2908/22-2908-2024-10-24.html

• District of Columbia v. Heller, 554 U.S. 570 (2008). (2008, June 26). Justia Law. https://supreme.justia.com/cases/federal/us/554/570/

• Docket for 24-1046 - Wolford v. Lopez. (2025). Supremecourt.gov. https://www.supremecourt.gov/docket/docketfiles/html/public/24-1046.html

• Golde, K. (2024, May 29). Antonyuk v. James at SCOTUSblog. SCOTUSblog. https://www.scotusblog.com/cases/case-files/antonyuk-v-james/

• Koons v. Attorney General New Jersey, No. 23-1900 (3d Cir. 2025). (2025, September 10). Justia Law. https://law.justia.com/cases/federal/appellate-courts/ca3/23-1900/23-1900-2025-09-10.html

• McDonald v. Chicago, 561 U.S. 742 (2010). (2010, June 28). Justia Law. https://supreme.justia.com/cases/federal/us/561/742/

• N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). (2022, June 23). Justia Law. https://supreme.justia.com/cases/federal/us/597/20-843/

• Smith, M. (2022, December 7). Attention Originalists: The Second Amendment was adopted in 1791, not 1868 – Mark Smith. Harvard Journal of Law & Public Policy. https://journals.law.harvard.edu/jlpp/attention-originalists-the-second-amendment-was-adopted-in-1791-not-1868-mark-smith/

• The Black Codes, 1865-1868. (2013). Internet Archive. http://archive.org/details/blackcodes18651800good

• Wolford v. Lopez, 116 F.4th 959 (9th Cir.) - Opinion of the Court, (Ninth Circuit Court of Appeals September 6, 2024). https://cases.justia.com/federal/appellate-courts/ca9/23-16164/23-16164-2024-09-06.pdf

However, one influential thinker often overlooked is Niccolò Machiavelli. Far from being merely the author of The Prince, a treatise often associated with ruthless political maneuvering, Machiavel…

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Should Congress Pass a New Assault Weapons Ban?

Abstract

Ever since our nation’s previous “assault weapon” ban (AWB) expired in 2004; gun control advocates have argued for its reinstatement. This research provides an in-depth look at the best arguments made by gun control advocates to justify the passage of a new “assault weapon” ban that would be like that which was passed in 1994 as part of The Federal Violent Crime Control and Law Enforcement Act of 1994.

Part 1 will assess claims that the previous assault weapon ban achieved its aim of reducing violent crimes in which an “assault weapon” was used, and that the ban was especially effective at reducing the number of mass-shootings in the country.

Part 2 will examine the argument that what is being banned is a “military-style” rifle with no valid use among private citizens for lawful purposes such as hunting and personal defense. As such, proponents of a renewed ban say assault weapons fall outside any category of weapons protected by the Second Amendment.

What Is an Assault Weapon?

While it is impossible to give any kind of coherent, functional definition to the term assault weapon, since the only literal and legal definition of the term simply refers to any weapon used in an assault. See People v. Alexander, “[A] tire iron that was believed to be the assault weapon.” (People v. Alexander, 1993, p. 193).  In 1994, Congress passed a law defining and restricting “semi-automatic assault weapons”—itself an oxymoron—to include a short list of named firearms, such as “Colt AR-15,” as well as certain firearms (mostly semi-automatic rifles with detachable magazines) with two specified generic characteristics, such as a “bayonet mount” and a “pistol grip that protrudes conspicuously beneath the action of the weapon.” (Chapman, 2019).

But generally speaking, “assault weapon” has come to be a political term with no fixed meaning, it can mean anything the speaker wants it to mean. One legislature’s assault weapon warranting a prohibition and felony penalties is another legislature’s sporting rifle not subject to special restrictions. Even legislatures seeking to ban assault weapons define them in different and contradictory ways. So-called assault weapons are semiautomatic firearms that, just like all other semiautomatic firearms, fire one round for each pull of the trigger (Jacobs, 2015). The features that make an otherwise legal semiautomatic firearm an “assault weapon” under various laws do nothing to affect the firearm’s functional operation and, if anything, promote safe and accurate use (Halbrook, 2016). "Assault weapons" is ultimately a pejorative term that has long been portrayed as an exceptionally powerful firearm designed for killing large numbers of people.

In recent years, the United States has witnessed a renewed push for stricter gun control measures, particularly the introduction of a new assault weapon ban. However, this proposal raises significant concerns regarding its effectiveness, constitutionality, and potential impact on law-abiding citizens. Such a ban would not truly address the complexities of gun violence and simply serve as a superficial solution that fails to target the underlying causes.

Assault Weapons Ban: Myth vs. Reality

While handguns are the overwhelming weapon of choice for mass shooters, with 76% of all mass shootings being carried out by an individual armed with a handgun; while 58% of all mass shootings are carried out by individuals armed only with a handgun, whereas rifles of every kind are used in only 3-4% of murders nationwide (Wallace, 2020). Though the banned guns and magazines were used in only a modest fraction of gun crimes before the AWB, it was hypothesized that a decrease in their use might reduce gunshot victimizations, particularly those involving multiple wounds and/or victims (Prohibit Assault Weapons, n.d.).

In response to a Congressional mandate for an impact assessment of the assault weapons ban, following the law’s expiration in 2004, these studies utilized national and local data sources and a variety of analytical techniques to examine the ban’s short-term impact on gun violence. The ban made no measurable contribution to a reduction in gun homicides and found no evidence of reductions in multiple-victim gun homicides or multiple-gunshot wound victimizations (Koper, 2004).

Additionally, the assault weapons ban did not show any discernable drop in the number or frequency of mass shooting events (Koper, 2004). Despite the continuing protestations by notable AWB advocates in recent years, that the AWB was effective, including one of the AWB’s original sponsors and current President Joe Biden. Their factually unsupported assertions that the number of mass shootings had decreased during the period of the initial ban from 1994 to 2004, has been reaffirmed by subsequent studies in the intervening years, including an updated study conducted by The Marshall Project, at the behest of the Biden Administration, following an October 2023 mass shooting in Lewiston, Maine—The Marshall Project divides its analysis into five-year periods so that no one-year outlier muddles the matter. That analysis found that in every five-year period during which the original ban was partly or totally in effect, mass shooting incidents were higher than in the two five-year periods prior to the first ban. When it comes to casualties, the five-year period fully covered by the ban (1997–2001) saw 25 percent more mass shooting casualties than 1982–86 and 34 percent more than 1987–91 (Doherty, 2023).

Weapons of War?

But just because these assault weapons are used in an exceedingly rare number of mass shootings and Congress found their previous assault weapon ban didn’t lead to any of the predicted drops in gun homicides and mass shooting events that its proponents predicted, what about their other justification? That assault weapons are “weapons of war” which are so much more powerful and lethal than other rifles in common use, that the only place they belong are in the hands of soldiers on a battlefield (Prohibit Assault Weapons, n.d.).

There is, perhaps, a strong argument to be made here for an inherent manifestation of institutional and systemic racism within the gun control community when one considers that a staggering 87% of Americans who say they believe in the need for “common sense gun control” can look at a traditional “hunting-style” rifle with a wooden stock and a scary looking black “military-style” rifle, in a side-by-side comparison and conclude that even when they are functionally identical, as they use the same caliber of ammunition, hold the same number of rounds in their magazine, have an identical rate-of-fire and a comparable muzzle velocity, they will never-the-less argue the more traditional hunting-style rifle with a wooden stock should be legal to own for lawful purposes; while conversely concluding the scary black rifles are too dangerous to tolerate, as these black rifles pose a uniquely dangerous threat to the wider community who have no choice but to live amongst them (Farago, 2016).

However, this research does not seek to shame or vilify the vast majority of Americans that have joined the cry for “common sense gun control.” These are largely good and decent people with the very laudable aim of reducing the levels of violent crime in our country. So much of the “military-style” rifle distinction is a nescient argument, driven by a select few gun control lobbyists who willfully lied to the public by conflating two very similar sounding, but very different terms that have come to be used interchangeably among gun control advocacy groups, corporate media and politicians.

Assault Weapons vs. Assault Rifles

Even though “assault weapon” and “assault rifle” are two very distinct terms with distinct meanings, they have largely come to be perceived as entirely interchangeable. Yet there is a vast difference between the definition of an “assault rifle” which does refer to a type of military service rifle, which have already been prohibited to purchase by private citizens for nearly 40 years. On the other hand, we have the amorphous term “assault weapon” which, in this context could be said to describe any semi-automatic sporting rifle with a “military-style” appearance as defined in Part 1 and the AWB statutory definition. The term “assault rifle” is used by the military to describe a selective-fire rifle such as the AK-47 that fires both fully automatically and semiautomatically. The M-16 selective-fire service rifle came to be the American military’s “standard assault rifle.” Federal law defines the M-16 as a “machinegun,” i.e., a “weapon which shoots . . . automatically more than one shot, without manual reloading, by a single function of the trigger.” (Halbrook, 2016).

By contrast, a semiautomatic firearm can only fire a single shot with each pull of the trigger. The latter type of firearm is extraordinarily common nationwide; they have been part of the landscape in America for over 100 years. AR-15s have been in commercial production since the 1950’s (Halbrook, 2021). But the production of civilian rifles that fire only in semiautomatic mode and that have cosmetic features that look like those of military rifles gave gun prohibitionists the idea of calling them assault weapons to promote banning them (Jacobs, 2015).

In a now infamous white paper, written in 1989 by a lobbyist with the Violence Policy Center they argued:

“The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semiautomatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun— can only increase the chance of public support for restrictions on these weapons.” (Sugarman, 2015, p. 2).

In fact, the AR-15 and other AR-style rifles and carbines are so well-suited to self-defense in a civilian context, the Department of Homeland Security quite literally defines these rifles as “personal defense weapons.” (English, 2022).

When we examine even the most in-depth claims about military-style semi-automatic rifles like the AR-15, such as the belief that pistol grips and hand guards facilitate mass murder by enabling shooters to spray fire from the hip; that certain features are useful in combat and crime but not in sporting applications; and whether such firearms are “commonly used” for lawful purposes (Chapman 2020).

Examining the history of civilian and military firearms design; U.S. Army marksmanship doctrine; military doctrine respecting infantry combat; prior research on topics including the impact of magazine capacity on casualty rates in gun crime, the efficacy of various calibers of ammunition in self-defense; and other relevant topics, all such evidence leads to only one conclusion; that the AR-15 is not a military weapon; that it is useful for and used in all legitimate civilian shooting applications; that it is not deadlier than other firearms in criminal assaults including mass public shootings (Chapman, 2020) and the misleading claims about the AR-15 by gun control advocates undermine efforts to develop effective proposals to reduce gun violence (Chapman, 2020).

References

Barnhizer, D., & Barnhizer, D. D. (2016, March 8). Gun Control Hysteria. Ssrn.com. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2744879

Chapman, D. (2019). Firearms Chimera: The Counter Productive Campaign to Ban the AR-15 Rifle. SSRN Electronic Journal, 8(1). https://doi.org/10.2139/ssrn.3466567

Doherty, B. (2023, February 8). Biden’s proposed assault weapon ban is unconstitutional, unlikely, and ineffectual. Reason.com. https://reason.com/2023/02/08/bidens-proposed-assault-weapon-ban-is-unconstitutional-unlikely-and-ineffectual/

E. Gregory Wallace. (2020). “Assault Weapon” Lethality. SSRN Electronic Journal, 88(1). https://ssrn.com/abstract=3625076

Eger, C. (2020, November 17). Data: US has 434 Million Guns, 20M ARs, 150M Mags : Guns.com. https://www.guns.com/news/2020/11/17/data-us-has-434-million-guns-20m-ars-150m-mags

English, W. (2022, May 13). 2021 National Firearms Survey: Updated Analysis Including Types of Firearms Owned. Papers.ssrn.com. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4109494

Farago, R. (2016, August 21). News Flash! People are Scared of Black Rifles - The Truth About Guns. The Truth about Guns. https://www.thetruthaboutguns.com/news-flash-people-scared-black-rifles/

Halbrook, S. (2016). Reality Check: The “Assault Weapon” Fantasy and Second Amendment Jurisprudence. https://stephenhalbrook.com/wp-content/uploads/2024/05/Reality-Check.pdf

Halbrook, S. (2021). Banning Americas Rifle: An Assault on the Second Amendment? - Articles - UW-Madison Libraries. Wisc.edu; Federalist Society Review. https://search.library.wisc.edu/article/cdi_gale_infotracgeneralonefile_A795813977

Jacobs, J. B. (2015). Why Ban “Assault Weapons”?. Cardozo Law Review, 37(1). https://ssrn.com/abstract=2632677

Koper, C. S., & Roth, J. A. (2004). The Impact of the 1994 Federal Assault Weapon Ban on Gun Violence Outcomes: An Assessment of Multiple Outcome Measures and Some Lessons for Policy Evaluation. Journal of Quantitative Criminology, 17(1), 33–74. https://doi.org/10.1023/a:1007522431219

Lund, N. (2017). Fourth Circuit Shootout: “Assault Weapons” and the Second Amendment. SSRN Electronic Journal, 24(5). https://ssrn.com/abstract=3029650

Prohibit Assault Weapons. (n.d.). Everytown Research & Policy; Everytown for Gun Safety. Retrieved September 24, 2024, from https://everytownresearch.org/solution/assault-weapon-ban/

Sugarman, J. (2015, July 13). Assault Weapons and Accessories in America. Violence Policy Center. https://vpc.org/publications/assault-weapons-and-accessories-in-america/

Sullum, J. (2022, July 14). This Lawsuit Says a Recent SCOTUS Decision Makes It Clear That “Assault Weapon” Bans Are Unconstitutional. Reason.com. https://reason.com/2022/07/14/this-lawsuit-says-a-recent-scotus-decision-makes-it-clear-that-assault-weapon-bans-are-unconstitutional/

Thomas, C. (2000, June 28). Stenberg v. Carhart, 530 U.S. 914 (2000). Justia Law. https://supreme.justia.com/cases/federal/us/530/914/

Wallace, E. G. (2018). “Assault Weapon” Myths. SSRN Electronic Journal, 43. https://ssrn.com/abstract=3269670

Wallace, E. G. (2020, June 11). “Assault Weapon” Lethality. Ssrn.com. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3625076

Greetings everyone! Today we have the actually very last case from my Supreme Court Roundup to wrap up. I realize in my last post I said that the NetChoice cases were the final cases for this term…

Chronologically speaking, that is accurate, but as I noted in my Netchoice case wrap-up, I have been incredibly busy lately and my coverage of the incredibly important Rahimi decision somehow got lost in the hustle and bustle that is my life at the moment.

For an update about what you can expect from us here at Legalese over the next year, please read onto the end of the article.

Background & Procedural History

In 2020, a Texas court entered a civil protective order against Zachary Rahimi after an incident in which Rahimi assaulted his girlfriend in a parking lot. This protective order specifically barred Rahimi from possessing a gun. Several months later, Rahimi was a suspect in a series of shootings. After obtaining a search warrant, police found a rifle and pistol in his home, leading prosecutors to charge him with violating federal law, 18 U.S.C. § 922(g)(8), which prohibits the possession of a firearm by persons subject to domestic-violence restraining orders (United States v. Rahimi, No. 22-915, n.d.).

Rahimi challenged his conviction under the Second Amendment. He pointed to District of Columbia v. Heller, 554 U. S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), which held that the Second Amendment protects an individual right to keep and bear firearms.

Therefore § 922(g)(8) violates that right by penalizing firearms possession. The District Court rejected Rahimi’s claim, applying a form of means-end scrutiny to Second Amendment claims. Applying Circuit precedent, the Fifth Circuit affirmed the District Court (United States v. Rahimi, No. 21-11001, n.d.)

Less than a month after the Fifth Circuit affirmed Rahimi's conviction, the Supreme Court would issue its opinion in New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___ (2022). They would reject the lower court's application of means-ends scrutiny as inconsistent with the Heller precedent. Bruen's framework requires the Government to prove that the “regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” (New York State Rifle & Pistol Association, Inc. V. Bruen, 597 U.S. ___ (2022), n.d.).

Rahimi argued that in light of the Supreme Court's decision in Bruen, that § 922(g)(8) violated the Second Amendment. The U.S. Court of Appeals for the Fifth Circuit agreed, vacating an earlier judgement and instead finding that under Bruen's framework of text, history and tradition, the Government need not identify a "historical twin"; rather, a "well-established and representative historical analogue" would suffice. But the Fifth Circuit found the government had failed to provide such an analogue, necessary for the law to survive (Legalese, 2024).

Question Presented

Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment?

Whether § 922 is facially invalid, requiring the entire statute be struck down as unconstitutional?

Rules

Under federal law, 18 U.S.C. § 922 deals with the unlawful possession of a firearm by a prohibited person (18 U.S. Code § 922 - Unlawful Acts, 2010).

§ 922(g)(8) says that it shall be unlawful for any person to possess a firearm if that person is subject to a court order that restrains such person from harassing, stalking or threatening an intimate partner or engaging in conduct that could put that intimate partner in fear of bodily injury.

The Second Amendment reads:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

I

In United States v. Salerno, the Supreme Court found that to successfully mount a facial challenge, a person “must establish that no set of circumstances exists under which the [law] would be valid.”

Under the Bruen decision the Court found:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation.

~ New York State Rifle & Pistol Assn., Inc. v. Bruen (U.S. Jun. 23, 2022) 

II

In the Rahimi case, the Court explained that consistent with their decision in Bruen, courts should look at whether the modern regulation being challenged is “relevantly similar” to historical regulations. And in so doing, Chief Justice Roberts stressed, courts should focus on the purpose of the regulation and the burden that it places on the Second Amendment right to bear arms.

“For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. ” 

~United States v. Rahimi, No. 22-915, 11 (U.S. Jun. 21, 2024).

In Rahimi, the Court would survey early English and American gun laws and conclude that at the time the Second Amendment was ratified: “Our Nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” (United States v. Rahimi, No. 22-915, 9 (U.S. Jun. 21, 2024).

III

Justice Thomas would dissent, finding that no single historical regulation justified the statute at issue and identified the following issues in the majority opinion:

1. § 922(g)(8), unlike other subsections of the law, [see: §§ 922(g)(1), 922(g)(9)] does not require a finding that such persons have ever actually committed the crime of domestic violence. As an automatic, uncontestable consequence of certain orders § 922(g)(8) strips an individual of their rights to possess firearms and ammunition without any due process.
   

2. When considering if a modern regulation is consistent with a historical regulation, the court's precedents point towards two metrics: how and why the regulation burdens the right to armed self-defense. § 922(g)(8) does not comport with either metric.

   1. The historical regulation the government points to regarding disarming "dangerous" individuals, point to regulations of those who have been found to be dangerous following a criminal conviction, in which they were afforded due process. Therefore, § 922(g)(8) does not comport with the historical metric of why an individual could be disarmed.

   2. The historical regulation of firearms, even when addressing a similar societal problem as that of § 922(g)(8), namely disarming "dangerous individuals" did so through the materially different means of surety laws. Therefore, § 922(g)(8) does not comport with the historical metric of how an individual could be disarmed.

For those reasons, Justice Thomas would conclude:

“Not a single historical regulation justifies the statute at issue, § 922(g)(8)” ~United States v. Rahimi, No. 22-915, 72 (U.S. Jun. 21, 2024)

IV

As applied to the facts of this case, the Court found that § 922(g)(8) 'fits comfortably within our Nation's historical tradition of firearms regulations.' Therefore, when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment (United States v. Rahimi, No. 22-915, n.d.).

Finally… Is there a federal court case you would like to see me cover? Or perhaps a media article you would like me to respond to? Or perhaps an enacted law or regulation you would like me to discuss? Of course, you can always make a request— and with the Supreme Court on break until this coming fall term, this would be an ideal time to do so.

But don’t forget that if you become a paid subscriber to the show through either a Substack or Locals membership, not only are you playing a vital role in helping me to support and grow the channel— One of the most enticing (paid subscriber only) perks is a guaranteed topic request. Your support gets you a minimum 1800 word article or (at least) 20 minute video, devoted entirely to discussing any topic request you may have…

---

Citations

18 U.S. Code § 922 - Unlawful acts. (2010). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/18/922

Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024). (n.d.). Justia Law. Retrieved July 16, 2024, from https://supreme.justia.com/cases/federal/us/603/22-451/

New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022). (n.d.). Justia Law. https://supreme.justia.com/cases/federal/us/597/20-843

Strasser, R. (2017, June 5). Second Amendment. Legal Information Institute; Cornell Law School. https://www.law.cornell.edu/wex/second_amendmentLinks to an external site. 

United States v. Rahimi, 61 F.4th 443.
https://casetext.com/case/united-states-v-rahimi-13 

United States v. Rahimi, No. 21-11001.
https://casetext.com/case/united-states-v-rahimi-11 

‌United States v. Rahimi, No. 22-915.
https://casetext.com/case/united-states-v-rahimi-16

United States v. Salerno, 481 U.S. 739.
https://casetext.com/case/united-states-v-salerno-7

Past Articles & Episodes

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Things got pretty exciting as people learned the Executive is, in some contexts, immune from prosecution. Unfortunately the NetChoice decision would be swept away by the controversy surrounding immunity. A controversy I’m not quite sure I understand, given the fact that from a separation of powers perspective that’s an entirely reasonable conclusion. But that’s not what we are here to discuss.

We are here to discuss the decision in Moody v. NetChoice, the final decision to be released from my 2023-2024 Supreme Court Roundup.

As many of you may well recall from my earlier articles and videos covering this case:

Back on September 29, 2023, the Supreme Court would grant cert on two cases dealing with the constitutionality of controversial laws in Texas and Florida that would regulate how large social media companies like Facebook and Twitter control content posted on their sites. The laws were enacted in response to legislators’ beliefs that the companies were censoring their users, particularly those with conservative views.

In 2021, Florida and Texas would pass laws that restrict the ability of social media platforms to control whether and how third-party posts are presented to other users. Or, otherwise put, these laws limit the social media platforms ability to engage in content moderation.

The Texas law, known as H.B. 20, bars social-media platforms with at least 50 million active users from blocking, removing, or “demonetizing” content based on the users’ views. The Florida law, known as S.B. 7072 or the Stop Social Media Censorship Act, prohibits social-media companies from banning political candidates and “journalistic enterprises.”

~Moody v. Netchoice, No. 22-277 (U.S. July 01, 2024)

The States’ laws differ in the entities they cover and the activities they limit. But both curtail the platforms’ capacity to engage in content moderation—to filter, prioritize, and label the varied third-party messages, videos, and other content their users wish to post. Both laws also include individualized-explanation provisions, requiring a platform to give reasons to a user if it removes or alters their posts.

Netchoice, an internet trade association went to federal court in Texas and Florida to challenge the laws, arguing (among other things) the laws violate their First Amendment right to control what speech appears on their platform.

The question presented in this case were: (1) Whether the First Amendment prohibits a State from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so. (2) Whether the First Amendment prohibits a State from requiring social-media companies to notify and provide an explanation to their users when they censor the user's speech (Moody v. NetChoice, 2024).

Though, as those of you who viewed my post-oral arguments update may recall, during the 3+ hours of oral arguments they never really got around to question two.

So the argument really focused around whether or not these content-moderation restrictions violate the First Amendment rights of these private social media platforms.

In both instances, NetChoice filed suits in federal courts, bringing facial challenges to these laws, claiming it violated the First Amendment in all its applications. Consequentially, NetChoice sought preliminary injunctions against any enforcement of any provision of these laws. In both cases, the District Courts enjoined any enforcement of the law.

The Eleventh Circuit would affirm the Florida District Court’s finding that the law would likely not survive First Amendment review. On the other hand, the Fifth Circuit would reverse the Texas court’s injunction on the grounds that the Texas law does not regulate any speech and so does not implicate the First Amendment (NetChoice, LLC v. Attorney Gen., 2022).

These rulings created a textbook example of an on point circuit split, prompting the Supreme Court to grant cert for both cases on September 29, 2023.

I

According to Justice Kagan’s majority opinion, neither the Eleventh nor Fifth Circuit conducted the proper analysis for a First Amendment facial challenge.
Unlike other facial challenges that use the Salerno formulation, see: United States v. Salerno, 481 U. S. 739, 745 (1987), which holds that a facial challenge must establish that no set of circumstances exist under which any provision of this law would be valid.

A First Amendment facial challenge instead relies on the Overbreadth Doctrine, see: Hansen, 599 U. S. at 770, Bonta, 594 U. S. at 615 and United States v. Williams, 553 U. S. 285, 292-293 (2008). This involves looking at all possible applications of the law to determine which of those applications are constitutional and which are unconstitutional, to decide whether the law “prohibits a substantial amount of protected speech, relative to its plainly legitimate sweep," (see: Washington State Grange, 552 U. S., at 449.)

In both instances the lower courts analysis and arguments focused on how the laws applied to the content-moderation practices that giant social-media platforms use; such as how the laws applies to the likes of Facebook’s News Feed and YouTube’s homepage. They did not address the full range of activities the laws cover, nor measure the constitutional applications against the unconstitutional applications. In short, they treated these cases more like as-applied claims than like facial ones.

Justice Alito would author a concurrence joined by Justices Gorsuch and Thomas in which they would concur with the narrow-holding of the case, finding that NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional.

But Alito also challenges the strain facial challenges put on the federal court’s constitutional authority to decide only actual “cases” and “controversies”—Consistent with Art. III, § 2. As litigants generally lack standing to bring cases protecting the rights of third parties, (see: Hansen, 599 U.S. 762, 769) the courts have otherwise insisted that facial challenges stand up to the rigorous scrutiny outlined in Salerno. He contends the Overbreadth Doctrine is too loose and permissive, suggesting a First Amendment facial challenge should be decided in accordance with the more stringent standard found in the Salerno Doctrine.

Justice Thomas goes further still, finding that facial challenges are fundamentally at odds with Article III limits on Federal Court’s judicial power over “cases” and “controversies.” Accordingly, federal courts can decide whether a statute is constitutional only as applied to the parties before them— they lack authority to deem a statute “facially” unconstitutional.

II

Though Moody v. Netchoice was ostensibly a unanimous decision, that agreement was solely in regard to the Court’s narrow primary holding, which found that neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws.
The majority goes on to preview the steps by which a proper facial analysis in this case should proceed. The first step walks through a number of possible applications of these laws to services such as Gmail, Etsy, and Venmo. The next step, according to the majority, is to decide which applications of these laws would constitute a First amendment violation and measure them against the rest.

The Court goes onto cite Cutter v. Wilkinson, 544 U.S. 709 — which highlights the fact the Supreme Court cannot undertake the needed inquiries to establish all possible applications of these laws, and can therefore not decide which applications violate the First Amendment:

"[W]e are a court of review, not of first view" (Ginsburg, 2005).

Justice Kagan goes onto explain how, even if the Court decided to ignore their role as a Court of appellate jurisdiction in cases such as this, they still could not undertake a facial analysis of this case’s First Amendment challenges, because the parties have not briefed the critical issues, nor even developed a complete record of these issues.

III

Naturally, Justice Kagan immediately proceeds to fill the next 15 pages of this Court’s opinion with an explanation of virtually all the relevant facets of a First Amendment analysis. This appears to have been a preemptive effort to prevent the Fifth Circuit from issuing a ruling that conflicts with the majority’s understanding of the merits. They assert the Fifth Circuit may presumably repeat what the Court identifies as errors of judgment in their treatment of NetChoice’s challenge—noting the Fifth Circuit’s conclusions rest on a serious misunderstanding of First Amendment precedent and principles.

However, four Justices would reject the majority’s decision to issue a judgement that goes on to treat both laws like an as-applied challenge and to preview their potential future ruling on the merits. This includes Justice Jackson, who had joined the majority in full in their analysis of part I and II.

Justices Jackson, Alito, Gorsuch and Thomas argue the Court’s broader attempts to provide guidance on how these laws should be applied is both unnecessary and unjustified, as was their preview of a future merits ruling. They concluded there was no reason to decide anything other than the facial unconstitutionality question actually before the court.

Justice Thomas would punctuate this argument with Justice Scalia’s timeless maxim (See Jama, 543 U.S. 335):

“Dictum settles nothing, even in the Court that utters it” (Scalia, 2005).

Moreover, every concurrence criticizes the Court for engaging in the exact type of analysis that it chastises the Courts of Appeals for performing.

Conclusion

What we end up with in the NetChoice cases is an ostensibly unanimous 9-0 decision—that is beyond complicated in the particulars and where the only thing that all nine Justices agreed on was that they were going to disagree on the questions presented because of the complicated procedural posturing in this case.

But at least the primary holding is clear: The judgments are vacated, and the cases are remanded, because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to these Florida and Texas laws regulating large internet platforms.

Much like the Rahimi decision, the Court uses the facial challenge analysis as a subtle way of reversing the Fifth Circuit, without having to actually decide the case on the same basis.

Citations

• Congress. (1791, December 15). U.S. Constitution - First Amendment . Constitution.congress.gov; Library of Congress. https://constitution.congress.gov/constitution/amendment-1/

• Florida Senate Online. (2021, July 1). Senate Bill 7072 (2021) - The Florida Senate. Flsenate.gov. https://www.flsenate.gov/Session/Bill/2021/7072

• Ginsburg, R. (2005, May 31). Cutter v. Wilkinson, 544 U.S. 709 (2005). Justia Law. https://supreme.justia.com/cases/federal/us/544/709/. Footnote 7.

• Moody v. NetChoice, (United States Supreme Court July 1, 2024). https://www.supremecourt.gov/qp/22-00277qp.pdf. Question Presented.

• Moody v. NetChoice, LLC, 603 U.S. ___ (2024). (2024, July 1). Justia Law. https://supreme.justia.com/cases/federal/us/603/22-277/

• Moody v. NetChoice, No. 22-277 (U.S. July 01, 2024). (2024). U.S. Reports. https://www.supremecourt.gov/opinions/23pdf/22-277diff_3e04.pdf

• NetChoice, LLC v. Attorney Gen., (United States Court of Appeals, Eleventh Circuit May 23, 2022). https://casetext.com/case/netchoice-llc-v-attorney-gen

• NetChoice, LLC v. Paxton, (United States Court of Appeals, Fifth Circuit September 16, 2022). https://casetext.com/case/netchoice-llc-v-paxton-2

• Rehnquist, W. (1987, May 26). United States v. Salerno, 481 U.S. 739 (1987). Justia Law. https://supreme.justia.com/cases/federal/us/481/739

• Scalia, A. (2005, January 12). Jama v. Immigration and Customs Enforcement, 543 U.S. 335 (2005). Justia Law. https://supreme.justia.com/cases/federal/us/543/335/

• Texas Legislature Online. (2021, September 9). HB 20 - Introduced version - Bill Text. Capitol.texas.gov. https://capitol.texas.gov/tlodocs/872/billtext/html/HB00020I.htm. Legislative Session 87(2).

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In Vullo, the National Rifle Association, our Nation’s oldest civil rights organization, alleges that a New York official violated the group’s right to freedom of speech by urging banks and insurance companies that worked with the NRA to cut ties with the group.

Just as I predicted in my Supreme Court Roundup video about this case, we would ultimately see all nine justice unanimously siding with the NRA in finding that Maria Vullo, former superintendent of the New York Department of Financial Services (DFS) violated the first amendment by coercing DFS regulated parties to punish and suppress the NRA’s gun-promotion advocacy.

Generally it’s a point of pride for me to be able to look back to my predictions and marvel at just how correct I was, but I have to say that in this case, Ray Charles could have seen through Stevie Wonder’s eyes that the government violated the NRA’s first amendment rights in this case.

Everybody saw this coming, even the faithfully anti-gun corporate media—

Even the anti-gun ACLU saw that this case was such a blatant violation of the First Amendment that they offered to represent the NRA in this case. In fact the ACLU’s David Cole was the counsel of record when this case came before the Court in oral arguments.

Really nobody, except the most fanatical, Michael Bloomberg-esque gun grabbers sided with the claim that what Maria Vullo did was protected government speech— or that her actions were a valid exercise of the State’s law enforcement powers..

Opinion of the Court

Petitioner, National Rifle Association (NRA) sued respondent Maria Vullo—former superintendent of the New York Department of Financial Services (DFS)—alleging that Vullo violated the First Amendment by coercing DFS-regulated parties to punish or suppress the NRA’s gun-promotion advocacy. The Second Circuit held that Vullo’s alleged actions constituted permissible government speech and legitimate law enforcement. The Court granted certiorari to address whether the NRA’s complaint states a First Amendment claim.

Senior U.S. District Judge Thomas McAvoy allowed the NRA’s lawsuit to go forward. Vullo appealed that ruling to the U.S. Court of Appeals for the 2nd Circuit, which reversed. It ruled that the NRA’s allegations against Vullo did not rise to “an unconstitutional threat or coercion to chill the NRA’s free speech.” And in any event, it added, Vullo would have been entitled to immunity because the law governing Vullo’s conduct was not clear.

So this case, as it came before the Supreme Court was a challenge to the Second Circuit’s dismissal of the case.

The NRA’s “well-pleaded factual allegations,” Ashcroft v. Iqbal, 556 U. S. 662, 678–679, are taken as true at this motion-to-dismiss stage. DFS regulates insurance companies and financial services institutions doing business in New York, and has the power to initiate investigations and civil enforcement actions, as well as to refer matters for criminal prosecution. The NRA contracted with DFS-regulated entities— affiliates of Lockton Companies, LLC (Lockton)—to administer insurance policies the NRA offered as a benefit to its members, which Chubb Limited (Chubb) and Lloyd’s of London (Lloyd’s) would then under- write. In 2017, Vullo began investigating one of these affinity insurance policies—Carry Guard—on a tip passed along from a gun-control advocacy group. The investigation revealed that Carry Guard insured gun owners from intentional criminal acts in violation of New York law, and that the NRA promoted Carry Guard without the required insurance producer license. Lockton and Chubb subsequently sus- pended Carry Guard. Vullo then expanded her investigation into the NRA’s other affinity insurance programs.

On February 27, 2018, Vullo met with senior executives at Lloyd’s, expressed her views in favor of gun control, and told the Lloyd’s exec­utives “that DFS was less interested in pursuing” infractions unre­lated to any NRA business “so long as Lloyd’s ceased providing insur­ance to gun groups, especially the NRA.” App. to Pet. for Cert. at 199– 200, ¶21. Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA.” Id., at 223, ¶69.

On April 19, 2018, Vullo issued letters entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organ­izations.” Id., at 246–251 (Guidance Letters). In the Guidance Letters, Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluat­ing and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion or­ganizations”; (2) “review any relationships they have with the NRA or similar gun promotion organizations”; and (3) “take prompt actions to manag[e] these risks and promote public health and safety.” Id., at 248, 251. Vullo and Governor Cuomo also issued a joint press release echoing many of the letters’ statements, and “ ‘urg[ing] all insurance companies and banks doing business in New York’ ” to join those “ ‘that have already discontinued their arrangements with the NRA.’ ” Id., at 244.

DFS subsequently entered into separate consent decrees with Lockton, Chubb, and Lloyd’s, in which the insurers admitted violations of New York’s insurance law, agreed not to provide any NRA-endorsed insurance programs (even if lawful), and agreed to pay multimillion dollar fines.

Held: The NRA plausibly alleged that respondent violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promo­tion advocacy. Pp. 8–20.

At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society. When government officials are “engaging in their own expressive conduct,” though, “the Free Speech Clause has no application.” Pleasant Grove City v. Summum, 555 U. S. 460, 467. “When a government entity embarks on a course of action, it neces­sarily takes a particular viewpoint and rejects others,” and thus does not need to “maintain viewpoint-neutrality when its officers and em­ployees speak about that venture.” Matal v. Tam, 582 U. S. 218, 234. While a government official can share her views freely and criticize particular beliefs in the hopes of persuading others, she may not use the power of her office to punish or suppress disfavored expression.

In Bantam Books, Inc. v. Sullivan, 372 U. S. 58, The Supreme Court explored the distinction between permissible attempts to persuade and imper­missible attempts to coerce. The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech. Id., at 67. Ultimately, Bantam Books stands for the principle that a government official cannot di­rectly or indirectly coerce a private party to punish or suppress disfa­vored speech on her behalf. Pp. 8–11.

But that is exactly what the NRA’s complaint alleges that Vullo did, Sotomayor continued. And in reaching the contrary conclusion, she wrote, the court of appeals misapplied the framework outlined in the court’s 1963 decision in Bantam Books v. Sullivan for analyzing claims that the government has unconstitutionally coerced someone to violate someone else’s First Amendment rights. When the NRA’s complaint is read in its entirety, she reasoned, it “plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy.” And if that is true, Sotomayor concluded, “that violates the First Amendment.”

Vullo made clear she wanted Lloyd’s to dis­associate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA’s. Vullo also told the Lloyd’s executives she would “focus” her enforce­ment actions “solely” on the syndicates with ties to the NRA, “and ig­nore other syndicates writing similar policies.” App. to Pet. for Cert. 223, ¶69.

The message was loud and clear: Lloyd’s “could avoid liabil­ity for [unrelated] infractions” if it “aided DFS’s campaign against gun groups” by terminating its business relationships with them. Ibid. As the reaction from Lloyd’s further confirms, Vullo’s communica­tions were reasona­bly understood as coercive. Other allegations concerning the Guidance Letters and accompanying press release, viewed in context of their is­suance, reinforce the NRA’s First Amendment claim. Pp. 12–15. While The Second Circuit concluded that Vullo’s alleged communica­tions were “examples of permissible government speech” and “legiti­mate enforcement action.” 49 F. 4th 700, 717–719.

Sotomayor’s opinion was both clear and scathing in its rebuke—noting the Second Circuit could only reach this conclusion by taking the complaint’s allegations in isolation and failing to draw reasonable inferences in the NRA’s favor.

Sotomayor would also state that Vullo’s arguments to the contrary lack merit.

The conceded illegal­ity of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny under Bantam Books. Nor does her argument that her actions targeted “nonexpressive” business relation­ships change the fact that the NRA alleges her actions were aimed at punishing or suppressing speech. Finally, Vullo claims that the NRA’s position, if accepted, would stifle government speech and hamper le­gitimate enforcement efforts, but the Court’s conclusion simply reaf­firms the general principle that where, as here, the complaint plausi­bly alleges coercive threats aimed at punishing or suppressing disfavored speech, the plaintiff states a First Amendment claim. Pp. 15–18.

The NRA’s allegations highlight the constitutional con­cerns with the kind of strategy that Vullo purportedly adopted. Alt­hough the NRA was not the directly regulated party here, Vullo alleg­edly used the power of her office to target gun promotion by going after the NRA’s business partners.

Sotomayor explained that the NRA is not immune from government investigations and regulations. And, she observed, Vullo was “free to criticize the NRA and pursue the conceded violations of New York insurance law.” Which she chose not to do. What she could not do, however, was use her power as the head of the Department of Financial Services to “threaten enforcement actions” against entities that the department regulated “to punish or suppress the NRA’s gun-promotion advocacy.” Which is precisely what she did.

The main takeaway from this case is that the First Amendment prohib­its government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private inter­mediaries.

As such the Second Circuits ruling is vacated and remanded. P. 19.

The Supreme Court also indicated, however, that when the case returned to the court of appeals, the lower court could consider whether Vullo is entitled to qualified immunity – which could prove to be a high bar for the NRA to surmount.

Justice Neil Gorsuch wrote a brief separate concurring opinion in which he noted that the court’s opinion had suggested that many lower courts had relied on a “four-pronged ‘multifactor test’” to analyze coercion claims like the NRA’s. Although that test might in some scenarios be useful, Gorsuch acknowledged, they are merely “guideposts”: The key question, he stressed, is whether a plaintiff “has ‘plausibly alleged conduct that, viewed in context, could reasonably be understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”

In her own separate concurring opinion, Justice Ketanji Brown Jackson emphasized what she characterized as the “important distinction between government coercion, on the one hand, and a violation of the First Amendment.” It is only once a court determines that coercion occurs, she contended, that it must then “assess how that coercion actually violates a speaker’s First Amendment rights.” Doing so, she continued, may require the court to apply different doctrines depending on the facts of the case – for example, whether (as in this case) the plaintiff alleges that it was the victim of censorship or retaliation.

The Ninth Circuit, in U.S. v. Duarte, has joined the Third Circuit's Range decision when the panel vacated Steven Duarte’s conviction for violating 18 U.S.C. § 922(g)(1)1 which makes it a crime for any person to possess a firearm if he has been convicted of an offense punishable by imprisonment for a term exceeding one year.

While the law does not use the term “felon” an offense punishable by imprisonment for a term exceeding one year constitutes what is known as a felony-equivalent charge.

The Ninth Circuit held that the Gun Control Act's ban on firearm possession by felons is in violation of the Second Amendment as applied to convictions for non-violent offenses (at least after they serve their criminal sentences) on the basis it has no Founding-era analogues. The court's opinion is extraordinarily thorough and deserves a deep dive, and so a deep dive it shall get!

The opinion was written by Senior Judge Carlos Bea and joined by Judge Lawrence VanDyke.  Judge Milan D. Smith, Jr., dissented and expressed hope for an en banc rehearing, which the government has made clear they plan to seek en banc review. Considering this is a pro-second amendment decision in the Ninth Circuit, en banc review is all but assured.

The majority begins with the principle that:

[The Supreme Court's decision in] Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment's plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government's burden to prove that the challenged law is consistent with this Nation's historical tradition of firearm regulation.

Following an exhaustive opinion that examines Duarte’s charges in light of Bruen’s text, history and tradition standard:

A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are "distinctly similar" to Duarte's underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender's estate.

The Court would hold, this defendant's particular past convictions—for vandalism, drug possession, evading a peace officer, and being a felon in possession of a firearm—did not qualify.

Judge Milan Smith would dissent, concluding that pre-Bruen Ninth Circuit precedent categorically holds that all felons lack Second Amendment rights; the majority and the dissent disagree on whether Bruen overruled that precedent.

The dissent, in particular, argues that:
(1) Bruen "repeatedly limited its definition of the scope of the right to 'law-abiding' citizens, using that phrase no fewer than fourteen times throughout the opinion,"
(2) "Nothing … in Bruen reflects a retreat from the Court's earlier statement in Heller that 'longstanding prohibitions on the possession of firearms by felons and the mentally ill' are 'presumptively lawful,'" and
(3) concurrences in Bruen reaffirmed the Heller view with regard to felons.

The panel’s majority responds, among other things, that

We do not think that the Supreme Court, without any textual or historical analysis of the Second Amendment, intended to decide the constitutional fate of so large a population in so few words and with such little guidance…. [W]e agree with the Third Circuit that Bruen's scattered references to 'law-abiding' and 'responsible' citizens did not implicitly decide the issue in this case.

It also takes the view that,

'Simply repeat[ing] Heller's language' about the 'presumptive lawful[ness]' of felon firearm bans will no longer do after Bruen," given Bruen's call for a historical analysis, and given that "the historical pedigree of felon firearm bans was never an issue the Heller Court purported to resolve.

It’s worth noting that any further review sought in this case, whether that comes in the form of an en banc hearing, or a petition for cert will probably be influenced by the Supreme Court's Rahimi case, which deals with whether people subject to domestic violence restraining orders lose their Second Amendment rights, and which is expected by the end of June. The question in Rahimi and the question in this case aren't identical, but they share considerable similarities.

However there are several distinctions between these two cases that are worth noting. Range and Duarte brought an as-applied challenge to 18 U.S.C. §922(g)(1) on the grounds that their convictions were for non-violent offenses—

Duarte’s sentence involved vandalism, drug possession, evading a peace officer and for being a felon in possession of a firearm. Range’s sentence is based on a 1995 case in which he pleaded guilty to making false statements about his income to obtain $2,458 of food stamp assistance in violation of a felony-equivalent Pennsylvania law that charged him with welfare fraud.2

It’s hard to imagine a more outrageously arbitrary offense to use as a justification for depriving a person of their constitutionally protected individual right to armed self-defense than incorrectly filling out a government form. Yet, unlike the Ninth Circuit, in Range the Third Circuit would hold that any and all felony convictions put an individual outside the scope of second amendment protections.

Rahimi is concerned with a challenge to 18 U.S.C. §922(g)(8) which prohibits the possession of firearms by persons subject to domestic-violence restraining orders. The Fifth Circuit held that Section 922(g)(8) violates the Second Amendment on its face. App., infra, 7a-27a. The court began by reasoning “Rahimi is included in "the people" and thus within the Second Amendment's scope.”3

While coverage of the Rahimi case is almost always reported on with sensationalistic headlines—

This sort of framing misses the point entirely. While there is certainly a strong case to be made that people who are convicted of a violent crime, such as domestic abuse, have traditionally been prohibited from possessing firearms— a restraining order is not a conviction. Domestic Violence Protection Orders (DVPO) are issued in an “ex parte hearing,” which is a short conversation between the judge and the plaintiff. The judge will ask the plaintiff what acts of domestic violence the defendant committed. If the judge finds that the defendant (the person the case was filed against) committed domestic violence, the judge will grant an “ex parte order.”

18 USC §922(g)(8)4 proposes to deny an individual of their constitutionally protected individual rights based on such allegations as a DVPO, rather than proof. Additionally, an ex parte hearing that strips the defendant of their civil liberties violates the defendant’s due process rights, as it allows the government to take away the defendants firearms without any awareness of the fact that such a decision is even being considered, much less providing them a chance to answer to the allegations made against them.

For more information on the Rahimi case I covered it here and here.

One point I want to briefly make is that I have seen a particular argument being made by several sources who are analyzing and discussing this case entirely from the point of view of a 2A advocate, without accounting for legal and procedural considerations— Arguing that because this opinion came out before the Supreme Court decided the Rahimi case, they will take this decision (Duarte) into consideration as they decide that case (Rahimi). The implication being that because this case and Rahimi are so similar, the Ninth Circuit’s decision will make them look more favorably on deciding in favor of Rahimi.

This is just wishful thinking. If you have been following my coverage of Rahimi, especially the oral arguments, it will be easy to understand why. On the merits, Rahimi was always going to be a very difficult case to win— Any slight hope that perhaps it wasn’t entirely impossible to squeak by with a 5-4 decision in favor of Rahimi was dashed against the proverbial rocks at oral arguments when Rahimi’s attorneys performance before the Court constituted what may very well be the most epic fail by any attorney in Supreme Court history.

If there were any Justices who had come into the Court that day ready to find in favor of Rahimi, his bumbling lawyer clearly talked them out of that position.

Also, this wishful thinking belies all Supreme Court procedure. This case was decided months ago in private conference immediately after oral arguments… If the full final opinion of the Court isn’t already written, they are just making last minutes tweaks, double-checking every jot and tittle. Furthermore, Rahimi does not involve the Court being asked to settle a split in the lower courts.

If these two cases influence each other in any way, it will be a matter of the Court remanding Duarte and Range to the Ninth and Third Circuit (respectively) for reconsideration in light of the Rahimi decision.

Where the Duarte panel’s opinion really shines is in it’s textual analysis—

Duarte states the right to bear arms is guaranteed to "the people," which per Bruen refers to "all Americans," not an "unspecified subset." While Heller stated that the Amendment protects "the right of law-abiding, responsible citizens to use arms" for self-defense, the universe of "the people" is larger. 

While Heller referred to "longstanding prohibitions on the possession of firearms by felons" as among the "presumptively lawful regulatory measures," Bruen expressly requires courts to assess whether a restriction "is consistent with this Nation's historical tradition of firearm regulation."  The felon ban was not an issue in Heller, and "the Court has yet to explore this country's history of banning felons from possessing firearms."

[T]he need for "distinctly similar" historical regulations given that violence with firearms is a "problem that has persisted [in this country] since the 18th century."  The government sought historical regulations from three sources:

1. [P]roposals in the state ratifying conventions

2. [L]aws disarming classes of persons, and

3. [T]he historical practice of executing felons

First, like some other courts, Duarte notes that proposals related to disarming criminals in three state ratifying conventions failed to pass.  But read carefully, they "allude to a possible tradition of disarming a narrow segment of the populace who posed a risk of harm because their conduct was either violent or threatened future violence." 

 The New Hampshire proposal would have allowed disarming those who "are or have been in actual rebellion," a crime that denoted violence. 

Samuel Adams' proposal in the Massachusetts convention would have protected the arms right for "peaceable" citizens, but in the common-law context that meant disarming those who bore arms in a manner "to terrorize the people." 

The draft of the Pennsylvania minority to disarm persons "for crimes committed, or [for] real danger of public injury" is best understood as referring to a narrower "subset of crimes [that] suggest[ed] a proclivity for violence."

Second, as elsewhere, the government lined up the usual suspects of purported historical analogues – the disarming of British Loyalists, Catholics, Indians, and slaves.  But those laws fail both the "why" and the "how" of Bruen's analogical test.

The British Loyalist "swore himself out of 'the people' by refusing his oath of allegiance," but his arms could be restored if he was no longer "disaffected."  The government cited only three colonial laws disarming Catholics, and those laws reflected the perception that Catholics "acknowledge[ed] a foreign power, superior to the sovereignty of the kingdom."  Laws prohibited selling arms to Indians, but did not ban gun possession by Indians, who were members of another political community "with whom the colonies were frequently at war."  As to laws disarming slaves and free blacks (an "analogue" the government embarrassingly dropped in Rahimi), they "fell outside 'the people' entitled to Second Amendment protection."

In short, the reasoning for disarming these classes "does not carry over to the nonviolent offender who served his prison term," and the "how" and "why" for such laws are not "distinctly similar" to § 922(g)(1) "to justify its blanket ban on non-violent felons possessing firearms."

Third, the government argued that the Founding generation understood felons to have no right to possess firearms because they faced death and total estate forfeiture for their crimes. 

But as Founder James Wilson wrote in his Lectures on the Law (1791), even in England, few felonies, indeed, were punished with death. 

The generical term used immemorially by the common law, to denote a crime, is felony. True indeed it is, that the idea of felony is now very generally and very strongly connected with capital punishment; so generally and so strongly, that if an act of parliament denominates any new offence a felony, the legal inference drawn from it is, that the offender shall be punished for it capitally. But this inference, whatever legal authority it may now have acquired, is by no means entitled to the merit of critical accuracy. At this moment, every felony does not, in England, receive a punishment which is capital: petit larceny is a felony. At this moment, one felony escapes in England, as it must in all other countries, every degree of punishment that is human: suicide is a felony. At the common law, few felonies, indeed, were punished with death.5

Moreover, the concept of a "felony" today has skyrocketed beyond recognition, as the Supreme Court wrote in Lange v. California (2021), which held that the flight of a suspected misdemeanant does not always justify a warrantless entry into a home:

Even as the newly formed states filled the pages of their penal codes with new felonies each passing year, '[t]he felony category' at the Founding still remained 'a good deal narrower [then] than now.'6

Similarly, an officer cannot shoot a fleeing felon, the Court said in Tennessee v. Garner (1985), because [m]any crimes classified as misdemeanors, or nonexistent, at common law are . . . felonies today.7

That said, the Duarte court continues—

It may well be that 'the 18th- and 19th-century' laws traditionally punishing certain felonies with death, estate forfeiture, or a life sentence are the closest things to 'longstanding' felon firearm bans that Heller had in mind.  Moreover, some new crimes are sufficiently ‘relevantly similar’ to Founding-era crimes to be consistent with the Second Amendment: ‘Like burglary or robbery, plainly poses substantial risks of confrontation that can lead to immediate violence.’

However, no historical basis exists to disarm a person permanently merely for conviction of "a[ny] crime punishable by imprisonment for a term exceeding one year," based solely on that label.  Steven Duarte was convicted of vandalism, which was a misdemeanor at common law; felon in possession of a firearm, which was not a crime at the Founding; and drug possession and evading a peace officer, which were not shown to be crimes with an analogous, Founding-era predecessor.

Duarte is an American citizen, and thus one of “the people” whom the Second Amendment protects. The Second Amendment’s plain text and historically understood meaning therefore presumptively guarantee his individual right to possess a firearm for self-defense. The Government failed to rebut that presumption by demonstrating that permanently depriving Duarte of this fundamental right is otherwise consistent with our Nation’s history. We therefore hold that § 922(g)(1) violates Duarte’s Second Amendment rights and is unconstitutional as applied to him.8

In short, Duarte builds on now-Justice Amy Coney Barrett's dissent in Kanter v. Barr and the Third Circuit's en banc decision in Range, taking the analysis to a new height.  There will undoubtedly be further guidance from the Court in Rahimi with which to access whether the classification of all persons convicted of any crime punishable by over a year in prison have forfeited Second Amendment rights for their lifetimes.

Property rights are the bedrock of individual liberty. Where strong property rights don’t exist, neither does freedom.

Following the Court infamous 2005 case, Kelo v. City of New London, one of the most controversial rulings in its history—in which the Court held that economic development was a “public use” under the Fifth Amendment to the U.S. Constitution, many people had largely given up all hope that this is an issue that could ever be reformed by the high court. But the Court’s decisions in last term’s Tyler v. Hennepin County and this term’s Sheetz v. County of El Dorado and Devillier v. Texas auger well for the future of private property rights.

Tyler v. Hennepin County

Last May, the Supreme Court issued a unanimous decision in Tyler v. Hennepin County that addressed the issue of "home equity theft," a legal regime under which local governments can seize the entire value of a property in order to pay off a much smaller delinquent property tax debt. Geraldine Tyler, the plaintiff in the case, is a 94-year-old widow whose home, valued at $96,000, and was seized by Hennepin County after she was unable to pay off $15,000 in property taxes, penalties, interest, and fees. The County only got $40,000 at auction for the home, less than half its actual value. But what’s more the County then kept the entire $40,000 for itself, as Minnesota law allows.

In Tyler, the Supreme Court unanimously ruled that such practices qualify as takings requiring the payment of "just compensation" under the Takings Clause of the Fifth Amendment.

No person shall be deprived of life, liberty or property without due process, nor shall private property be taken for public use without just compensation.

Importantly, it also concluded that state law is not the sole source of the definition of property rights under the Takings Clause, and therefore state governments cannot seize private property without compensation simply by redefining it as the state's property.

While the Supreme Court decision left some notable issues unresolved, it nonetheless sets a significant precedent. Most obviously, the jurisdictions that currently authorize home equity theft—some twelve states and the District of Columbia—will no longer be allowed to do so. In addition, the holding that states cannot just redefine property at will has important implications for other property rights issues. It makes it harder for states to avoid all manner of takings liability.

In the majority opinion, Chief Justice John Roberts would provide one of the most concise descriptions of just how deeply rooted private property rights are in our laws and our history.

The Takings Clause does not itself define property. For that, the Court draws on "existing rules or understandings" about property rights. Phillips v. Washington Legal Foundation established State law is one important source…. But state law cannot be the only source. Otherwise, a State could "sidestep the Takings Clause by disavowing traditional property interests" in assets it wishes to appropriate. ("[T]he Takings Clause would be a dead letter if a state could simply exclude from its definition of property any interest that the state wished to take."). So we also look to "traditional property law principles," plus historical practice and this Court's precedents….[1]

The principle that a government may not take more from a taxpayer than she owes can trace its origins at least as far back as Runnymeade in 1215, where King John recognized in Magna Carta that when his sheriff or bailiff came to collect any debts owed him from a dead man, they could remove property "until the debt which is evident shall be fully paid to us; and the residue shall be left to the executors to fulfil the will of the deceased….." That doctrine became rooted in English law……

This principle made its way across the Atlantic. In collecting taxes, the new Government of the United States could seize and sell only "so much of [a] tract of land . . . as may be necessary to satisfy the taxes due thereon.[2]

Given the high value the Founders placed on property rights, it would be strange—to say the least—if these constitutional rights were left entirely at the mercy of state governments to redefine as they please, because state law protects them and plays a key role in defining their scope.

This was a crucial victory, since applying Minnesota’s arguments about the nature of property rights to other constitutionally protected individual rights would equally justify allowing states to redefine the scope of many other constitutional rights. For example, rights to speech and bodily autonomy could similarly be left to the discretion of the states on the theory that state law historically defined the scope of protection against assault and battery, and the extent to which speech could be restricted by laws against libel, slander, sedition, and blasphemy.

Sheetz v. County of El Dorado

“Your money or your life!” The armed bandit’s classic demand offers no good options—handing over your wallet in this circumstance would never be a voluntary act, and laws treat both the threat and the theft as criminal acts.

But what if the bandit wears an Uncle Sam mask? What if the government itself makes demands beyond its authority? This is the basis of the “unconstitutional conditions” doctrine, which enforces limits on the government’s ability to demand that private property owners hand over land or money.

It is precisely this unconstitutional conditions doctrine upon which this case would turn.

In Sheetz, the main issue would be whether there is a "legislative exception" to takings liability in at least some situations where the Fifth Amendment otherwise requires the government to pay "just compensation."

When George Sheetz, a contractor and consultant in Northern California bought a tract of land to build a small manufactured home for him and his wife to retire in and raise their grandson, the permit fees he was charged were so exorbitant, he made a federal case out of it.

Once his land was ready and all George needed was a county building permit, he was stunned when told he could have his permit, but only if he paid a so-called traffic impact fee of more than $23,000.

The County claimed it was bound by law to charge the fee for roadwork his project might cause, although it provided no evidence tying any future roadwork to any public cost or impact imposed by George’s project.

The government’s fee was nothing more than an exorbitant ransom to pay for permission to build a small, manufactured home. It unfairly imposed costs that had nothing to do with his project.

Supreme Court precedent recognizes that, while local governments can charge fees to mitigate for actual public impacts caused by a private project, demanding property in an amount that goes above and beyond that mitigation standard is a taking. This is true whether imposed by bureaucrats or lawmakers, but until George brought his case, the Supreme Court had yet to say so.

The Supreme Court unanimously ruled in Sheetz’s favor.

“[T]here is no basis for affording property rights less protection in the hands of legislators than administrators”

Justice Amy Coney Barrett wrote in the decision.

Though this outcome had been clear since the Court heard oral arguments in this case, when Justices Neil Gorsuch & Elena Kagan would indicate that that there was “radical agreement” about the lack of a “legislative exception” to the takings clause.

In her majority opinion, Justice Amy Coney Barrett would provide an exceptionally concise and well-crafted description of the Court’s Takings Clause jurisprudence.

The Takings Clause's right to just compensation coexists with the States' police power to engage in land-use planning. (Though at times the two seem more like in-laws than soulmates.) [Emphasis added] While States have substantial authority to regulate land use, see Village of Euclid v. Amber Realty Co., 272 U. S. 365 (1926), the right to compensation is triggered if they "physically appropriat[e]" property or otherwise interfere with the owner's right to exclude others from it, Cedar Point Nursery v. Hassid, 594 U. S. 139, 149–152 (2021).That sort of intrusion on property rights is a per se taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). Different rules apply to State laws that merely restrict how land is used. A use restriction that is "reasonably necessary to the effectuation of a substantial government purpose" is not a taking unless it saps too much of the property's value or frustrates the owner's investment-backed expectations. Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123, 127 (1978); see also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1016 (1992) ("[T]he Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land" 

Devillier v. Texas

The dispute here arose after the State of Texas took action to use portions of I–10 as a flood evacuation route, installing a roughly 3­ foot-tall barrier along the highway median to act as a dam. When subsequent hurricanes and storms brought heavy rainfall, the median barrier performed as intended. But it also flooded petitioners’ land, causing signif­icant damage to their property. Devillier filed suit in Texas state court. He alleged that by building the median barrier and using his property to store storm water, Texas had effected a taking of his property for which the State must pay just compensation. Texas removed the cases to federal court.

The operative complaint includes inverse-condemnation claims under both the Texas Constitution and the Tak­ings Clause of the Fifth Amendment.

Inverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant.[3]

In this case, Texas tried to avoid its takings clause liability by employing a rather crafty Catch-22. Devillier initially sought just compensation in a Texas State Court under a state cause of action. Texas preempted their ability to bring this case in a state court, by removing it to federal court.

Texas would then argue that Devillier had no standing to seek just compensation in a federal court because Congress has not provided a federal cause of action. Unbelievably, when this case went before the Supreme Court, Texas’ argument was ‘If their case had any merit they should have brought it in a State Court under a state cause of action.’ Which is precisely what they did.

Had Texas prevailed, it would have made it possible for any state to avoid takings liability by removing a case to federal court then arguing there is no federal cause of action that allows them to seek just compensation.

But perhaps the most notable aspect of Devillier wasn’t the opinion itself, but Justice Thomas’ incredibly clean and concise explanation of how constitutional rights can be litigated in federal court.

Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983.

So let’s give three cheers for property rights and for the Supreme Court’s newfound interest in upholding this most crucial of all civil liberties.

Carthago Delenda Est

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[1] Tyler v. Hennepin Cnty., Minn., 143 S. Ct. 1369, 1375 (2023)

[2] Tyler v. Hennepin Cnty., Minn., 143 S. Ct. 1369, 1376 (2023)

[3] Devillier v. Texas, No. 22-913, 5 (U.S. Apr. 16, 2024)

The Supreme Court heard oral arguments last week in the case of a Texas City council member who contends that she was arrested in retaliation for her criticism of the city manager. During just under 90 minutes of oral argument, the justices struggled to determine what kind of evidence plaintiffs in such cases need to show for their cases to go forward.

The former city council member, Sylvia Gonzalez, was elected to the city council in Castle Hills, Tex. In 2019, after a long meeting, Gonzalez placed a petition that she had initiated, criticizing the city’s manager, in her binder.

Gonzalez claims that she picked up the petition accidentally. But two months later she was charged with violating a state law that prohibits tampering with government records. Gonzalez, then 72 years old, was arrested and spent a day in jail, although prosecutors declined to pursue the charges against her.

Gonzalez then filed a federal civil rights claim under 42 USC §1983 against the mayor, police chief, and lawyer who had investigated her, alleging that she had been arrested in retaliation for her criticism of the city’s manager. In her complaint, she contended that she was the only person charged under the state law in the past 10 years for temporarily misplacing a document.

Under the Supreme Court’s 2019 decision in Nieves v. Bartlett:

[Normally] “plaintiffs must… prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause.”[1] …But the Court carved out a narrow exception “that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”[2] 

Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019)

A federal district court in San Antonio allowed Gonzalez’s case to go forward. But a divided U.S. Court of Appeals for the 5th Circuit reversed.

Gonzalez cannot take advantage of the Nieves exception because she has failed to "present[ ] objective evidence that [s]he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been." 139 S. Ct. at 1727. Gonzalez does not offer evidence of other similarly situated individuals who mishandled a government petition but were not prosecuted under Texas Penal Code § 37.10(a)(3).

 Rather, the evidence she offers is that virtually everyone prosecuted under § 37.10(a)(3) was prosecuted for conduct different from hers. The inference she asks us to draw is that because no one else has been prosecuted for similar conduct, her arrest must have been motivated by her speech. But the plain language of Nieves requires comparative evidence, because it required "objective evidence" of "otherwise similarly situated individuals" who engaged in the "same" criminal conduct but were not arrested. Id. The evidence Gonzalez provides here comes up short.

Gonzalez v. Trevino, 42 F.4th 487, 492 (5th Cir. 2022)

Anya Bidwell, an attorney with the Institute for Justice represented Gonzalez at court on Wednesday. She told the justices that the city officials’ argument

“[E]xtends Nieves beyond its moorings. If the mayor in this case got in front of TV cameras and announced that he was going to have Ms. Gonzalez arrested because she challenged his authority, the existence of probable cause would make this evidence legally irrelevant.” Their argument, she continued, “would also toss out of court a critic arrested for jaywalking on a remote country road, even if his town had never arrested anyone for jaywalking before, simply because he couldn’t find a non-critic who jaywalked on the same spot.”

Lisa Blatt – who represented the city officials – told the justices that Gonzalez’s argument would open the door to allow virtually any defendant to bring a retaliatory arrest claim.

If you accept Gonzalez’s “gamesmanship,” Blatt suggested, “those arrested for domestic violence will claim the victim just slipped, those arrested for threats will claim they were just joking, and those arrested for embezzlement will claim they just accidentally misplaced the funds.”

The Court would grant cert on two QP’s:

1. Whether the Nieves probable cause exception can be satisfied by objective evidence other than specific examples of arrests that never happened.

2. Whether the Nieves probable cause rule is limited to individual claims against arresting officers for split-second arrests.

The justices spent relatively little time on the second question presented, about limiting the Nieves exception to on-the-spot arrests

Gonzalez insisted that it was so limited. She told the justices that Nieves was dealing with the “vast bulk of retaliatory arrest cases,” involving on-the-spot arrests, which involve a “very particular causal complexity” not found in cases like Gonzalez’s, in which two months lapsed between the conduct that led to Gonzalez’s arrest and the arrest itself.

But Justice Samuel Alito pushed back against that suggestion. “I don’t see a reference to split-second arrests” in the court’s holding in that case. Though that exact phrase can be found on page 1724 of the Nieves opinion.[3] Instead, Alito stressed, the court held that because there was probable cause for the arrest in that case, there was no grounds for a retaliatory arrest claim.

Justice Sonia Sotomayor echoed Alito’s skepticism. She acknowledged to Bidwell that she had

“[D]issented in Nieves, so on a clean slate I would likely agree with [Gonzalez], but what do I do,” she asked, “with the line in Nieves that says that [a] ‘plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest”?

Chief Justice John Roberts observed that he “didn’t dissent in Nieves.”

The reason people find this funny is because it was Chief Justice Roberts who actually authored the majority opinion in the Nieves case… so of course he didn’t dissent. The Chief goes on to make a point about the narrowness of the Nieves exception.

“And the Court’s opinion in that case went out of its way to emphasize the narrowness of the exception”

To the general rule that a plaintiff in a retaliatory arrest case must show that there was no probable cause for the arrest – suggesting that he too did not regard Nieves as limited to on-the-spot arrests.

Justice Elena Kagan, on the other hand, was more convinced

“That the split-second arrest seems to be a key part of the Court’s reasoning in Nieves – maybe not all of the Court’s reasoning, but some critical part of it.”

However, she questioned whether it might be difficult to draw such a distinction in practice, noting that there would be “a lot of stuff in the middle.”

Bidwell appeared to make more headway with her argument that the court of appeals was wrong to require Gonzalez to show that someone else who had misplaced a government document but had not engaged in protected speech was not arrested. Sotomayor noted that Edward Trevino, the mayor, had also violated the government-records law “by taking the petition home and keeping it overnight.” “Why wouldn’t that,” she asked, “be sufficient evidence that Gonzalez was singled out for arrest?”

I found this point to be incredibly interesting because I think it is by far the strongest evidence the petitioner has in demonstrating retaliatory arrest. Yet, this fact was mentioned rather nonchalantly in the brief Gonzalez filed and she failed to even mention it during her opening arguments. In fact, they didn’t bring it up at all until asked about it, at which point she gives an answer that does absolutely nothing to convey the strength of that evidence, despite the fact Justice Sotomayor softballs a question to her practically inviting her to make that very point when she says: Why wouldn't that be sufficient comparative evidence that someone else took this by mistake for overnight and kept it?

I struggle to understand why Gonzalez would not have pressed this point with a stronger answer along the lines of “We agree. We believe that evidence in and of itself is sufficient comparative evidence to demonstrate retaliatory arrest, and the fifth circuit’s ruling is wrong… not, as Anya said, “problematic” but flat out wrong.

I Realize this point may sound like a trivial matter, after all, what reasonable person would fail to infer that problematic is virtually interchangeable with wrong. And in conversational English that’s a logical conclusion anyone could reach a priori. However, in legalese its not uncommon for judges to simply not consider any postulation they are not expressly asked to take judicial notice of.

If you have read my article or watched my video on

The Constitutional Revolution of 1937 you may recall that during the New Deal Court, there had been a great effort by the Roosevelt Administration to get the Court to overturn Adkins v. Children's Hospital, 261 U.S. 525 (1923). A case which prohibited the creation of a federal minimum wage law for women on the grounds that it violated the liberty of contract, protected under the 14^th Amendment’s due process clause.

In 1936, the New Dealers would attempt, but fail to get around Adkins in Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). The New Dealers lost in a slim 5-4 vote that upheld Adkins.

According to the Morehead holding:

“The Act, as construed by the state court, is in conflict with the due process clause of the Fourteenth Amendment. Adkins v. Children's Hospital, 261 U.S. 525. P. 609 et seq. 3.” 

~Morehead v. N.Y. ex Rel. Tipaldo, 298 U.S. 587, (1936)

One year later, they would attempt and succeed to get the Court to uphold a state minimum wage law for women in West Coast Hotel v Parrish. Despite there being no change in the Justices on the Supreme Court between Morehead and Parrish. Yet in Parrish, the Court would uphold the minimum wage law for women:

…[Because] “The State has a special interest in protecting women against employment contracts” 

West Coast Hotel Co. v. Parrish, 300 U.S. 379, (1937)

In Parrish, we saw the Court divide along the same lines for the same reasons as with Morehead and Tipaldo, except for Justice Owen Roberts, the only one to contradict his own vote in Morehead.

There were some wild conspiracy theories that were adopted back then to explain this switch, many of which still continue to be believed today. However the logic behind this was there all along. In Morehead, a concurring opinion was penned by Justice Roberts where he addressed his reason for not overturning Adkins:

“This Court, in certiorari cases, confines itself to the ground upon which the writ was asked for and granted.” 

Morehead v. N.Y. ex Rel. Tipaldo, 298 U.S. 587, 604 (1936)

After the Parrish decision, when asked about his swing vote from one year to the next, his answer was perfectly mundane and reasonable. The petitioners in Morehead never asked the Court to overturn Adkins. The Court can only address questions that are properly raised to allow them to take judicial notice of them.

This is the reason people file amicus briefs today. Because the Court’s decisions have such wide consequences, amicus briefs allow people or groups who are not a party to the case, but could reasonably be effected by its outcome to submit briefs to make points not made by the parties to the case, specifically so the Court can take judicial notice of them; without an obvious violation of estoppel procedure.

This is why I think Ms. Bidwell’s response to this question is insufficient to a problematic degree (pun intended). Because, if she never says, ‘we believe this was wrong’, judicial restraint is reason enough to gloss over that argument entirely, even if they were inclined to agree with that point.

Justice Amy Coney Barrett pressed Bidwell on the limits of her rule. What if Gonzalez had the same kind of “long-running disputes,” but she was arrested for a “more substantial” crime? Bidwell maintained that her position would still be the same?

“It’s not an offense-by-offense standard, it’s a standard of what did she do … versus what kind of evidence she can provide and whether probable cause, given that context, tends to show that the arrest would not have happened had it not been for speech.”

Representing the United States, Assistant to the U.S. Solicitor General Nicole Reaves told the justices that they should resolve the case by holding that the court of appeals applied the wrong standard when it “effectively” required Gonzalez to “show direct evidence of comparators or empirical statistics” to satisfy the Nieves exception.

When asked by Justice Clarence Thomas to explain what kind of evidence plaintiffs could use to show that they had been singled out, Reaves posited that it could

“[B]e a variety of different types of evidence in different situations [but] the ultimate inference the evidence needs to support is that there would have been similarly situated people who were not, in fact, arrested.”

Roberts remained skeptical, returning to the court’s characterization of the Nieves exception “as a narrow one.” The federal government’s

“[L]ong list of the type of evidence that should come in to defeat the retaliation claim seems to me to be inconsistent with the notion of a very strong general rule that had been well-established and a very narrow exception.”

Other justices appeared more swayed by Gonzalez’s argument and highly skeptical of the government’s arguments. Justice Neil Gorsuch observed that there were “over 300,000 federal crimes,” Not to mention the innumerable state and local crimes. He asked about how can the government deny a claim such as Ms. Gonzalez could not be actionable, Given those laws can sit there, entirely unused, except for one person who alleges that they were the only person in America who’s ever been prosecuted under that law because they dared express a view protected by the First Amendment.

Justice Kagan would back up this argument being made by Justice Gorsuch when she expressed to Ms. Blatt that when the court of appeals had understood Nieves to say you have to show a person within this jurisdiction who has engaged in this conduct before and was not arrested, that that has got to be wrong. Kagan would say

“[Y]ou should be able to express your point that they’ve never charged somebody with this kind of crime before and therefore, I don’t have to go find a person who has engaged in the same conduct.”

Because that obviously negates the fact this clearly appears to be a targeted weaponization of the law.

Justice Ketanji Brown Jackson pressed Blatt on this point as well when asking her “So for you, it’s not enough to say no one has ever been arrested for doing this kind of thing before?”  Blatt continued to insist that it was not.

Justice Barrett also seemed unconvinced by Blatt’s argument that a ruling in Gonzalez’s favor would open the floodgates for anyone who was arrested to bring a retaliatory arrest claim.

In her rebuttal, Anya Bidwell urged the justices to look at the interaction between the two issues before the court. If Nieves only covers on-the-spot arrests, she suggests, then the narrower view of the kind of evidence that will satisfy its exception makes sense because plaintiffs are more likely to be able to show that someone else who was engaged in the same conduct was not arrested. But if Nieves applies more broadly, she continued, then the exemption should consider broader kinds of evidence.

We’ll know by summer whether a majority of the justices agree. Most of the justices seem to be sympathetic to this idea that while on the spot decision-making by police officers should be protected it is a different type of a situation when you have a two month investigation when defendants are not arresting officers but desk bound bureaucrats who spent two months looking into this one incident. And despite no new evidence developing during those two months, circumvented the district attorney when they walked a warrant directly to a judge under a procedure reserved for violent criminals when standard practice for this type of minor charge is almost exclusively handled with a summons—all to teach this women on the city council a lesson about what happens when you interfere with their boys club.

Stepping back and looking at these oral arguments from a macroscopic view there seemed to be two distinct lines of arguments that the justices were interested in exploring. The first of these dealt with objective evidence. What kind of objective evidence should be allowed to overcome the presence of probable cause?

For example two regular police officers looked into the complaint filed by the Mayor about Ms. Gonzalez and concluded there wasn’t anything about this incident that would warrant arresting her. Plus a prosecutor looked into these charges and decided there was nothing there to pursue. Then they did an end run around that prosecutor by hiring their own “special investigator” who had the law enforcement powers of a cop and the prosecutorial power of a district attorney—who walked a warrant to the judge to ensure that she wasn’t simply issued a summons.

They also manipulated the process in such a way as to ensure she would actually have to be booked into jail. Even if arrest has been warranted, they could have done so through the Satellite system, which would have allowed her to be brought in, formally booked, finger-printed then released with a court date. Instead they used this procedure that is meant for people being charged with a violent felony or if there was some kind of emergency regarding the issuance of that warrant that required immediate attention. There’s no way to argue that a situation that occurred two months earlier suddenly required immediate attention, that is preposterous.

Ultimately following that line of reasoning, regarding objective evidence, to the final decision would entail deciding if the Court should only be able to look at positive evidence to such a degree of specificity that anything short of identical examples of city council members who accidentally moved a government petition, but who was never publicly critical of the mayor and the city manager, were subsequently never charged with tampering under §37.10(a)(3).

This “objective evidence” line of reasoning seemed to be the position Justices Kagan, Barrett and Jackson were especially interested in and sympathetic towards.

On the other hand the other line of reasoning that some of the other Justices seemed especially interested in exploring was the application of common law to the matter. This had to do with the common law remedies that existed at the time the statute Sylvia Gonzalez is seeking relief under came into existence. So at the time 42 USC §1983, came into existence as part of The Enforcement Act of 1871, which was passed to give teeth to the recently ratified fourteenth amendment’s equal protection clause that protected things like the right to vote, the right to hold public office, to serve on juries and to otherwise able to receive equal protection under the law… and which gave the federal government the power to intervene when States did not act to protect these rights.

At that time there was a cause of action at common law for what is known as abuse of process.

Abuse of process is a common law tort that involves the misuse of legal process(es) for an ulterior purpose. Abuse of process is one of several actionable offenses aimed at discouraging bad-faith litigation attempts. Indeed, courts hold the authority to sanction parties for bringing frivolous action [4]

Abuse of process has been described as misusing a "criminal or civil process against another party for a purpose different than the proceeding's intended purposes" and thereby causing the party damages (e.g., arrest, seizure of property, or economic injury).

Gonzalez argued that her case was a perfect example of someone obtaining a warrant for private purposes inconsistent with the exigencies of the writ. That the city was not concerned with a just enforcement of the tampering statute and instead were using it to punish her.

This line of reasoning was one that Justices Gorsuch and Thomas were very keen on exploring. Justice Gorsuch asked the federal solicitor general as well as the respondent’s attorney, Ms. Blatt a number of questions about common law. Justice Thomas would pose questions to all three parties about the relation of common law to this case (which was not surprising, this is a topic Clarence Thomas is especially interested just in general.) While his general interest in common law was to be expected, what was surprising to me was his willingness to resolve this case along those common law lines.

Justice Thomas has always been very skeptical about the notion of first amendment retaliation claims, especially those brought under §1983. Primarily because of the way he reads the phrase “under color of law”, which in his view doesn’t leave room for intentional torts. On the other hand he is, broadly speaking, always interested in exploring common law analogues of causes of actions that did exist at the time a law was enacted, if such an analog does exist.

So, the fact that Anya Bidwell was tuned in enough to those inclinations that Justice Thomas has regarding common law analogs consistent with the text, history and tradition standard—and that she was able to identify a common law cause of action from that time that fit so well with the case before the Court was a brilliant choice on her part and she presented that argument in such a way that Justice Thomas seemed to find compelling.

I am optimistic about the outcome of this case. I believe there are, for sure, at least 6 votes to reverse the Fifth Circuit. Specifically, I think we will see Gorsuch, Thomas, Barrett, Kagan, Sotomayor and Jackson finding in favor of Ms. Gonzalez. At the same time I get the impression that Chief Justice Roberts, as well as Justices Kavanaugh and Alito are likely in favor of affirming the fifth circuit.

Based on the totality of the oral arguments I think the most likely outcome for the Court will be to choose to reverse on the second question presented, without even addressing the first, since the Court prefers to decide merits cases on narrowly tailored grounds. As Chief Justice Roberts would spell out in Dobbs v. Jackson’s Whole Women’s Health

“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”

~Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 348 (2022)
(Roberts, C. J., concurring in judgment).

This would mean vacating and remanding the case back to the fifth circuit with instructions to reconsider, based on a different framework to answer that second QP, which asked:

Whether the Nieves probable cause rule is limited to individual claims against arresting officers for split-second arrests.

Though the particulars of their judgement in the case and any subsequent instruction they will pass along as part of that judgement are not as easy to predict and we will just have to wait and see how that transpires whenever they hand down this decision in a couple of months.

Cartago Delenda Est

[1] Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019)

[2] Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019)

[3] “Officers frequently must make "split-second judgments" when deciding whether to arrest, and the content and manner of a suspect's speech may convey vital information—for example, if he is "ready to cooperate" or rather "present[s] a continuing threat."” Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019)

[4][4] https://www.law.cornell.edu/wex/abuse_of_process

Editor’s Note: This article is also available in video format as Episode #78 Of The Legalese Podcast

Earlier this week, during the oral arguments in the jawboning case Murthy v Missouri, Justice Ketanji Brown Jackson would utter one simple line:

"My biggest concern, is that your view has the First Amendment hamstringing the government in significant ways"1

That would cause the entirety of the American conservative movement to lose their collective minds and shit a metaphysical brick online.

With a collective gasp, they would share in a unique moment of transcendental outrage over this one statement, completely removed from all context beyond the 17 words that made up that partial sentence, that apparently proved, definitively, once and for all that the left was a monolithic institution built upon a foundation of pure hatred for the first amendment— and that this Supreme Court Justice outed herself as having precisely the same understanding of the meaning of the Constitution as a learning disabled prokaryote.

Congressman Jim Jordan, a Representative from Ohio seemed to act as what I can only describe as the admittedly contradictory thought leader of this conservative hivemind. The first statement I could find responding to Justice’s Jackson’s comment, from someone who believed this out-of-context partial sentence could be extrapolated to such a degree that it’s an indictment that every single leftist hates the first amendment was the following tweet by Jim Jordan.

And don’t let the fact that the video he is recommending in his retweet comes from a segment on SystemUpdate, a show hosted by the incorrigibly leftist-progressive journalist Glenn Greenwald lead you to believe that Jim Jordon doesn’t understand what he is talking about. So what if he disproves his own theory that liberals and progressives have a monolithic disdain for the first amendment by simultaneously praising a leftist’s advocacy for robust first amendment protections and free speech absolutism…

What you need to understand is that the problem with the criticisms by the Jim Jordans and his ilk against Justice Jackson is that they are factually inaccurate characterizations of what she actually said. This article is not a defense of her opinions about the first amendment. It is meant to prove her comment was in no way an expression of her opinion of the first amendment. This becomes clear if you merely listen to her full discussion in context, rather than the context-devoid sound-byte that has been circulating. Or even more pervasively, the article headlines that further chop up her words and reconstrue them in a way that is even more inaccurate than the selectively edited, out of context soundbite that’s clipped to make her look bad through a mix of dishonesty, bias and ignorance.

She is making an argument about the nature of First Amendment jurisprudence and the court precedent that shapes how they have interpreted the First Amendment over time— and the legal doctrines and tests that they have come up with over the years to distinguish between what is constitutional or unconstitutional for purposes of interpretation and construction.

Lets start by looking at how this debate has been presented in the news and across social media platforms, then we can work back from there.

That is the extent of the context that conservatives think is required to make the sorts of scathing indictments about why Justice Jackson hates the First Amendment and doesn’t understand the Constitution is, in actuality, a scathing indictment of the shockingly desperate confirmation bias that has gripped Republicans.

While Jim Jordan’s assertion that hamstringing government action was the purpose of the First Amendment is certainly true, the profundity of this statement is severely diminished by the fact that Jordan and so many of his closest allies in government, from Senator Josh Hawley, to Marjorie Taylor Greene, Matt Gaetz, Ted Cruz and Governors Greg Abbot and Ron DeSantis seem to believe Freedom of Speech isn’t so much a fundamental constitutional principle, as much as it is a cudgel to be wielded against people who disagree with them. Because they have no qualms whatsoever about using the coercive power of the government against the social media companies to blatantly and openly violate their free speech rights when it benefits them. Including their push to compel social media companies to host speech on their platforms if it is expressing a conservative viewpoint. Seemingly unaware the Bill of Rights is meant to hamstring all government coercion in the realm of speech and expression, where censorship and compulsion are two sides of the same coin.

I am, of course, referring to Texas H.B. 20 and Florida’s S.B. 7072. These are the pair of laws at the center of the Netchoice cases we have been following here on Legalese as part of my Supreme Court Roundup. Which compel these companies to host all kinds of speech on their platform that these private businesses would otherwise choose not to host, as is their right.

But I digress…

Returning to the matter at hand, if it was in fact true that the meaning of Justice Jackson’s “hamstringing” comment had been the broad and sweeping assertion that she believed the government should have the right to censor anything it wants, whenever it wants— and that the First Amendment is a pesky road block, unnecessarily blocking big government from telling big tech to take down speech that they disagreed with; including what he considers the most fundamental kind of speech (political speech.) That would indeed have been a frightening statement— and a clear signal that the future does not auger well for the continued existence of individual liberty in the country.

I assure you, if Jim Jordan’s representation of the meaning behind Justice Jackson’s words were remotely fair and accurate, I would be the first one getting out there and calling on every one to grab their pitchforks as I led the charge, effigy in hand, to emphatically and unambiguously express our deep displeasure at such a constitutionally repugnant view of the scope of first amendment protections against government censorship.

Of course Fox News claimed that what Justice Jackson is saying is that she doesn’t like the fact that the first amendment makes it difficult for the government to censor people. Here too, if this is what she had actually said That would be a horrific thing to hear a Supreme Court Justice say. Fortunately, as I said. Its not even close to the truth.

However, what has me so hot and bothered about all this is not that conservatives are getting this wrong. Being wrong is a human condition and a forgivable error. Its because what conservatives are doing here is attempting to dishonestly and unfairly impugn and delegitimize the Supreme Court in the eyes of the American people… The very same way the left is trying to do that when they talk about the present makeup of the Supreme Court being an ‘extremist court of far-right ideologues’ who are so corrupt and so dangerous we need to make the court a political body by packing the Court.

And of course once Fox News gave their official take we saw all the other conservative sites come out of the woodwork parroting identical headlines.

The Federalist ran a headline saying that Jackson is complaining that the first amendment is hamstringing the government’s efforts to censor people. Again, if this was what she actually said I would be enraged too. Fortunately whoever wrote this article is an idiot as well. Same with the The Washington Examiner.

So if she isn’t saying what everybody claims she said, what is she saying? I hear you asking. Well. To start with, why don’t we actually take the time to listen to this full exchange between Justice Jackson and attorney Benjamin Aguinaga, who is the attorney general of Missouri and was there representing the respondents in this case.

The fact is that all Justice Jackson was actually saying was that the government, of course, DOESN’T have the right to punish people criminally for engaging in the vast majority of all speech, but she was asking Mr. Aguinaga to what limit may the government have the right to persuade people without crossing the first amendment threshold. Which really is the central question of this entire case.

Anyone who only provides you the one sentence soundbite from Jackson— either did that because he hasn’t watched anything beyond that, or they did listen to it in context and chose to intentionally misrepresent Justice Jackson’s statement… Either way, someone who presents you with that kind of information, whether out of ignorance or malice is someone who you should not trust. When it comes to Jim Jordan specifically, there is no conclusion that can be drawn from his many comments expressing his supposed outrage with Justice Jackson except to say that he either didn’t bother to listen long enough to understand what she actually said, or he did and he chose to willfully lie to the hundreds of thousands of people who first picked up on this from his tweet.

My guess would be it’s the latter. Jordan is very invested in this case, I can’t imagine he wasn’t paying careful enough attention to understand he was engaging in willful and malicious slander. I can’t know the man’s precise motives or read his mind, so I can only speculate on whether this was ignorance or malice on his part. But it can only be one of those two options and both should be roundly condemned.

Its not as though it takes any great feat of concentration to continue listening to that exchange long enough to understand that the soundbite is truncated to such a degree that people have no choice but to read it in the context the person posting the clip has to provide.

That may be a bit confusing, so to help explain what I mean, take another look at the pair of headlines from the Federalist and the Washington Examiner

They both paraphrase her sentence using the word “censorship”. But the word censorship isn’t in the truncated quote that they are paraphrasing. In fact the word “censorship” isn’t even implied when you look at her quote verbatim. What’s more, had they included the sentence immediately before or immediately after the sentence they are relying on for their “quote”— both the preceding and proceeding sentences explicitly use the word “persuasion”, which directly contradicts their implied context that she is speaking about “censorship”.

The only way that the corporate media and the conservative politicians who are attacking her for what she said could use her own words against her, to make her look bad, required they take a single statement that, when read verbatim, is actually saying something entirely reasonable and benign.

They proceed to take the basic structure of her sentence, and replace the one actionable verb that is used (“persuasion”) with their own actionable verb (”censor”). Only after they altered her statement on that molecular level, by replacing her own word choice with another that has a completely contradictory (and nearly diametrically opposed) meaning could they then construct a narrative like the one that went viral.

But they didn’t just excise inconvenient words. They also excised an incredibly inconvenient term that she uses— “Hypothetical”

I mean, what would --what would you have the government do? I've heard you say a couple times that the government can post its own speech, but in my hypothetical, you know, kids, this is not safe, don't do it, is not going to get it done.

Right there, she very clearly states that she is not making a general statement on the first amendment or on censorship, writ large. She was further clarifying a completely hypothetical question she posed earlier. So to understand her hamstring comment, its absolutely essential we hear and understand the hypothetical question she is speaking to.

Her hypothetical is clearly contemplating persuasion only, not coercion. She could not be clearer about that. She asks, could the government try to persuade people not to do this hypothetical challenge? Then she asks could they not persuade the social media companies to remove information promoting this challenge, due to the harm it is causing.

Now you are free to agree or disagree with her about the propriety of the government trying to persuade platforms to remove that content. As the attorney general said “No, that’s still protected speech even if its dangerous.” And that view, offered by the attorney general about the government’s ability to persuade social media companies to remove such content may very well be the correct interpretation. But all she is doing here is asking a hypothetical question so she can better understand the argument the attorney general is making about when he believes even voluntary persuasion crosses the line into potential first amendment violations. And it is still this hypothetical question that she is discussing with the Attorney General during the all-important “hamstringing” comment she makes.

It seems to me, that the larger exchange that contains the clip that went viral appears to be a judge asking precisely the kind of question a judge should be asking in a case where the parties to the case are asking the court to decide whether actual communications between the government and social media, in which the government “strongly encouraged” social media companies to remove content they deemed to be harmful was, or was not, a permissible form of government speech.

Justice Jackson’s comment here has to be just about the most benign and most appropriate question a judge could possibly ask in a case like this if they are trying to reach a fair determination on the merits.

Lets revisit that entire exchange, presented chronologically, so we can all hear this discussion play out precisely the way someone who had been following the entire session of oral arguments would have heard and understood that exchange.

As you can see, while Justice Jackson and the conservative attorney general from Missouri never reach a full agreement about exactly when and how the government can encourage or coerce or even potentially censor speech, they both agree that they are limited circumstances in which the government is able to do that— and this is the importance of Strict Scrutiny. That when the government wants to take an action they would normally not otherwise be able to do, they must go to the Courts and present proof that the action they are taking is one that serves a compelling, constitutional government interest. Such as national security. Then they must demonstrate that this restriction is narrowly tailored so that it only infringes what is necessary to exercise that compelling interest. While Jackson and the attorney general don’t entirely agree on the contours of where that would apply, the attorney general fully recognizes the validity of applying strict scrutiny and he even agrees with some of the examples of acceptable censorship that would be allowed under strict scrutiny. Like reaching out to a social media company about leaked government documents that jeopardize national security.

Let me give you all one example of where I think we could all agree that the government would be justified in restricting speech using a strict scrutiny standard.

This is how the government can, for example take action on terroristic threats.

Let’s say someone makes some kind of threat that they are going to plant a bomb at the Superbowl. If the government establishes that what is being said is a credible threat, whether or not a bomb is actually successfully planted and detonated, simply stating that can have incredibly harmful consequences. That guy can’t go into court and say:

“This trial is a violation of my free speech rights. It’s not my fault they cancelled the football game, or that I caused a crowd of hundreds of thousands of people to enter into a state of panic and disorder that got many people hurt and cost an untold dollar amount in damages to persons and property. Its not my fault my free speech cost the teams millions of dollars in lost revenue. Furthermore, its irrelevant that various offices of local, state and federal government officials had to expend millions of dollars to cover the cost of the time, men and equipment that law enforcement required to restore order and to investigate this crime. All I did was engage in my constitutionally protected right to speak.”

Does anyone believe that you have a free speech right to make a threat that will throw an entire city into panic and hysteria and cost the government millions of dollars to simply restore order and to try and safeguard people from this threat? The government has a compelling state interest in preventing that kind of widespread panic and disorder, and as long as the only people whose speech is stymied is people who make those kinds of specific and actionable threats, that are all but certain to cause mass disorder and untold harm, then yes, the government can prevent those people from engaging in that particular speech if possible, or, where prevention isn’t possible, punish them for engaging in that speech after the fact.

So, why are all these conservatives getting so angry about a comment that Justice Jackson made in regard to a purely hypothetical question that dealt entirely with persuasion through public speech? Furthermore, why do they seem to take the application of strict scrutiny as an affront to freedom of speech and the first amendment, when even the parties to this case fighting against the government’s social media censorship fully endorse the validity of applying a strict scrutiny standard to narrowly tailored speech restrictions.

Ultimately, the only place Justice Jackson and the Attorney General could not reach agreement on were the contours and extent to which strict scrutiny would recognize that narrowly tailored restriction of a compelling government interest. That is to say, when can they do this and how far can they go. There is no disagreement on the factual finding that there are times where the government may restrict speech under the strict scrutiny framework by anybody on any side of this case.

And here I think we get to the crux of why I perhaps find the willfully dishonest and maliciously misrepresentative tactics by hypocritical clowns like Jim Jordan so pernicious and so disgusting.

Because, nowadays, really the only difference between the political left and right when it comes to their attitude toward Freedom of Speech, the First Amendment and the Supreme Court is that while Republicans and Democrats both want to destroy these institutions, based on politically biased and selfish motives— the left, at least, have the common decency to admit that’s their objective. Whereas the right is a snake in the grass.

Conservative politicians never get tired of telling people that they are the defenders of the first amendment, the defenders of free speech and the defenders of the legitimacy of the Supreme Court— Even as their actions demonstrate a clear and coordinated effort to attack and undermine these institutions in every way that is suitable to their personal aims.

The Supreme Court is very, very far from perfect. But they are the only part of the government not so completely corrupted by the political poison of this insane notion of a culture war, that they remain the only place in our government the constitution ever properly gets defended anymore. That doesn’t happen all of the time. It doesn’t even happen most of the time. But it does happens some of the time— and that’s a hell of a better track record of defending the constitution than we have seen from the Congress or the White House in years, if not decades.

Cartago Delenda Est